H. N. TILHARI, J. ( 1 ) THE petitioners-1 and 2, have filed this petition for following reliefs: (a) to declare that the Provisions of monopolies and restrictive trade practices Act, 1969, cannot be made applicable to the petitioner and further, to declare that the petitioner is neither carrying on any service as defined in Section 2 (r) of the monopolies and restrictive trade practices Act, nor is indulging in any restrictive trade practice as defined in Section 2 (o) of the act. That the petitioners have prayed for issuance of writ of prohibition or any other appropriate writ, order or direction restraining the respondents, particularly the 2nd respondent from proceeding to take any action under the aforesaid act as well as to direct not to proceed further under the act on the basis of two letters dated July 20th, 1987 and October 7th, 1987-annexures-a and c to this writ petition. While filing this writ petition, the petitioners prayed for an order of stay, staying further proceedings pending final disposal of the writ petition. This court vide its order dated 29-1-1988, granted the stay order as prayed. ( 2 ) THE petitioners' case as per allegations made in this writ petition is that the 1st petitioner, namely, nitte education trust, is a trust incorporated under the Indian trusts Act, and is owning and controlling educational institutions including institutions imparting technical education in the field of engineering. The 2nd petitioner claimed himself to be the citizen of india, and secretary of the first petitioner and in the capacity of secretary of the trust filed this writ petition to enforce the rights of the 1st petitioner as well as himself. Further case of the petitioner-trust is that the 1st petitioner-trust is a linguistic minority trust of tulu speaking community which is a minority community in the State of Karnataka and the petitioners claim that the petitioner-trust is entitled to the protection of article 30 of the Constitution of India as linguistic minority. That this protection is 'extended even in regard to monopolies and restrictivce trade practices Act, for short, the 'act' which act is not applicable to the minority educational institutions. As alleged in the writ petition that they are impugning the action of the respondents, where by the respondents are trying to impose the Provisions of the act. That this protection is 'extended even in regard to monopolies and restrictivce trade practices Act, for short, the 'act' which act is not applicable to the minority educational institutions. As alleged in the writ petition that they are impugning the action of the respondents, where by the respondents are trying to impose the Provisions of the act. That the 1st petitioner has established five educational institutions as is mentioned in paragraph-4 of this writ petition, namely, Dr. N. r. a. m. high school and junior college, n. r. a. m. polytechnic, n. g. s. m. institute of pharmaceutical sciences, n. m. a. m. institute of technology and a. b. s. m. institute of dental sciences. The 1st petitioner has established these institutions and spent money on capital expenditure, revenue expenditure for staff, equipments, libraries, hostels etc. That the institutions run by the 1st petitioner are the private institutions and which have to rely mainly on the funding by 1st petitioner and the private institutions run by the 1st petitioner depends on their own sources. The nature of education imparted by the 1st petitioner's institutions is basically professional which requires purchases and maintenance of sophisticated and expensive equipments, Provisions for clinical laboratories keeping highly trained and highly paid staff in order to maintain the high educational standards. That the income derived from the tuition fees alone may not be adequate to maintain and run the institutions and these institutions have to depend upon 1st petitioner for major expenditures on capital items like land, buildings, equipments, furniture etc. For the institutions. That the government of Karnataka vide-its order No. Ed 59 tec 87, dated 14-8-1987, specifically permitted the management to collect capitation fees from the students admitted under the management quota of 60% of the sanctioned intake to engineering college, but the trust has not chosen to collect the capitation fees from the students admitted to any of its colleges, which are depending mainly on the donations received by the trust from charitable and philanthropic public for meeting such expenditures on the educational institutions run by it. That the government had earmarked 40% of the sanctioned intake in the engineering college for allotment to candidates sponsored by the government and this requirement is fully met by the management. The petitioner-trust has furnished the scale of fee structure adopted in different institutions run by the trust as indicated in paragraph-6. That the government had earmarked 40% of the sanctioned intake in the engineering college for allotment to candidates sponsored by the government and this requirement is fully met by the management. The petitioner-trust has furnished the scale of fee structure adopted in different institutions run by the trust as indicated in paragraph-6. The scale of fee structure adopted in different institutions run by the trust has been given as under: (i) Dr. N. s. a. m. high school no fee is collected (ii) n. r. a. m. polytechnic Rs. 1,000/- p. a. (iii) n. g. s. m. institute of pharmaceutical sciences: (a) 2 year d-pharma course Rs. 600/- p. a. (b) 4 year b. Pharma degree Rs. 2,000/- p. a. (iv) n. m. a. m. institute of technology: 4 year b. e. degree courses Rs. 3,000/- p. a. (v) a. b. s. m. institute of dental sciences: 4 year b. d. s. degree course Rs. 10,000/- p. a. ( 3 ) ON account of infrastructural facilities provided in these institutions, the institutions run by the 1st petitioner are maintaining high academic standard as is evidenced by the high percentage of marks secured in public examinations held by statutory examining bodies including the university. The petitioner-trust has affirmed that the average expenses by a student in a medical college or a dental college would be in the range of 1. 5 lakhs. As it appear from the expenses incurred by the government in respect of colleges under its management and engineering college, the average expenditure as per student by way of recurring expenditure alone is in range of Rs. 5,000/- per annum. This will be in addition to capital expenditure. That so far as government colleges are concerned, they stand on different footing from the private colleges. That in the government colleges, large amount of funds are expended from public exchequer representing the tax payers' money on the education of the students at subsidised rate. That for the technical and professional institutions run by the trust, total initial capital outlay of at least Rs. 8. 5 crores is needed for the first four years and a provision of about 1. That for the technical and professional institutions run by the trust, total initial capital outlay of at least Rs. 8. 5 crores is needed for the first four years and a provision of about 1. 5 crores per year for subsequent years is required for additions and replacement of equipments and machinery as per details given in paragraph-9 and if, according to the petitioner's case, the entire impact of this cost is on the students admitted by the management, there would be a need to collect from them capitation fee at the time of their admission as shown in paragraph-9, for a period of first ten years; would be as under: dental college at Rs. 1,00,000/ per student engineering college at Rs. 35,000/- pharmacy college at Rs. 50,000/- and polytechnic at Rs. 10,000/- per student. In addition thereto, there would have to be a built up a corpus fund for each one of the institutions, if it is to ensure the expenses with reference to increasing quantum of salaries, purchase of new equipments and replacement etc. Are to be met with. But, in spite of these facts, the petitioner-trust is making efforts to meet these costs by raising donations from charitable and philanthropic public; or augment its resources by way of collection of tuition fees from students. That though Karnataka government has permitted for cllection of the capitation fee to the extent considered expedient from the quota of 60% of the sanctioned intake to be filled by the management in engineering college, the 1st petitioner has not invoked this benefit and has not collected capitation fees. That on 25th july, 1987, the 1st respondent received one of the impugned communications being letter No. 19/194/87/dgi and r/sta (sh), dated July 20th, 1987, issued on behalf of the 2nd respondent, that is, the director general of investigation and registration, ministry of industry, department of company affairs. That in this communication, it is stated that the 1st petitioner received capitation fee from the prospective students. Details and particulars on a number of matters relating to admission of student etc. Were sought and it was stated that such particulars were being sought under the act. The petitioners annexed the copy of that letter as Annexure-A to this writ petition. Details and particulars on a number of matters relating to admission of student etc. Were sought and it was stated that such particulars were being sought under the act. The petitioners annexed the copy of that letter as Annexure-A to this writ petition. That on August 6th, 1987, the petitioners sent a reply to Annexure-A and stated therein that neither was the imparting of education a trade under the act nor could the Provisions of the said act be extended to the institutions run by the trust. That the 1st petitioner's institutions were the minority institutions and were protected under article 30 of the constitution. The petitioners annexed the copy of that letter as Annexure-B to this writ petition. That on 7-8-1987, another letter bearing No. 19/194/87/dgir (seh), was served on the petitioner-trust and whereby, it was further stated that petitioner-trust should furnish information called for in earlier letter and that Section 2 (r) was vide enough in its terms to include education, and according to respondent 2, petitioners were indulging in restrictive trade practices by collecting the capitation fee. It was further mentioned in this letter that the contention of the petitioners in the reply that the act did not apply to educational institutions and was misconceived. So, the petitioner-trust was directed to furnish the information called for vide letter dated 20-7-1987 by or before 15-9-1987, failing which the penal action may be taken under Section 49. ( 4 ) FEELING aggrieved from the action of the respondents vide letters dated 20-7-1987 and 7-10-1987 as per annexures-a and c, the petitioners filed this writ petition challenging those notices on the ground that the Provisions of monopoly and restrictive trade practices act could not be made applicable to the educational institutions run by it. That activities of imparting education including the technical and professional have never been contemplated to fall within the framework of the trade or the Provisions of the act and secondly, as the petitioners' institutions are minority educational institutions belonging to tulu speaking as linguistic minority group of karnataka, they are entitled to protection under article 30 of the constitution. The petitioners have taken the stand in the writ petition that the activity of education cannot be apprehended to be within the definition of trade or trade practice. The petitioners have taken the stand in the writ petition that the activity of education cannot be apprehended to be within the definition of trade or trade practice. Education not being a trade, the Provisions of the monopolies and restrictive trade practices Act, 1969, would not be applicable and so, the respondents have no jurisdiction to take any action. It is further been asserted in the 'writ petition that even in the alternative, the monopolies and restrictive trad. e practices Act, 1969, is applicable, no suo motu action could be taken by the 2nd respondent under Section 10 or 11 of the monopolies and restrictive trade practices act. Lastly, according to the petitioners' case as pleaded in the writ petition, as such, the action of the respondent 2, is illegal, null, void and without jurisdiction. ( 5 ) NO counter-affidavit has been filed in this case by either of the respondents. ( 6 ) I have heard Sri santosh hegde, learned senior Advocate assisted by m/s. Hegde associates for the petitioner as well as Sri mukund menon, learned standing counsel for the central government at length. On behalf of the petitioners Sri santosh hegde submitted that education is not trade and it cannot be considered to be trade. Imparting of education or establishment of educational institutions to give education to the students whether general, technical or professional, can in no sense of the term be considered or said to be trade or business or industry or profession; nor can it be termed to be the trade within the meaning of expression 'trade' as defined as per Section 2 (s) of the Act, further, the learned counsel for the petitioners submitted that the education or establishment of education cannot also be termed to be a service for the purposes of Section 2 (s) nor service within the meaning of expression 'service' as defined in Section 2 (r ). The learned counsel for the petitioners invited my attention to 7th schedule of the constitution, in particular to entry 25 of the concurrent list, that is, list iii of vii schedule. Entry 25 relates to education including technical education. That, the learned counsel for the petitioners further invited my attention to entry 33 of the concurrent list and contended that the two entries are distinct. Entry 25 relates to education including technical education. That, the learned counsel for the petitioners further invited my attention to entry 33 of the concurrent list and contended that the two entries are distinct. In this connection, the learned counsel for the petitioners invited my attention to entry 41 of list I of vii schedule. Whereas, inviting my attention to entry 26 of the state list submitted with emphasis that trade and commerce has been treated a subject different from education and education cannot be taken to be, or imparting education or establishment of educational institutions cannot be taken to be something covered by the expression 'trade'. That education not being a trade, business or profession or occupation, the service rendered even by educational institutions cannot be termed to be trade, nor can be included in or as trade activities and as such, the Provisions of monopolies and restrictive trade practices act cannot be made applicable to the educational institutions whether imparting technical or professional education or otherwise. That education and educational institutions in Karnataka are controlled by Karnataka Education Act for short, 'education Act' and the Provisions of Karnataka educational institution (prohibition of capitation fee) Act, 1984, for short prohibition of capitation fee act'. That the capitation fee act prohibited the collection of the capitation fee by or on behalf of educational institutions, as they are not entitled to charge the fees beyond the one permitted by the government under the act. That by virtue of proviso to Section 3 it is provided that government may permit educational institutions which have already been established before the commencement of this act and which were maintained or developed wholly or substantially out of the amounts collected as capitation fee to continue and receive such capitation fee or cash deposits in the manner, to such extent and for such period as government may by orders specify and the arrangement was permitted only for a period of 5 years from the date of commencement of the act. That establishment of educational institutions is controlled by the Provisions of the act and fees otherwise than permitted under the prohibition of capitation fee act by the government and to the extent they are permitted, and that no amount above that can be collected whatever may be. That establishment of educational institutions is controlled by the Provisions of the act and fees otherwise than permitted under the prohibition of capitation fee act by the government and to the extent they are permitted, and that no amount above that can be collected whatever may be. The education or running of educational institutions under and in accordance with the Provisions of the Education Act and capitation fee Act, cannot be termed to be trade for the purposes of application of monopoly and restrictive trade practices Act, for short 'act' and as such, the act is not applicable to the educational institutions including institutions run by the petitioners and as such, the Provisions of the act are not applicable and the action initiated by respondent 2, is without jurisdiction and authority. That running of educational institutions be there professional or otherwise cannot be taken to mean service within the four corners of Section 2 (s) and 2 (r ). As such, the Provisions of the act are inapplicable. In support of his contention, Sri santosh hegde made reference to certain decisions of the Supreme Court including the decision in Unni Krishnan, J. P, and others v State of Andhra Pradesh and others, and to certain paragraphs thereof which will be referred at the proper place. That petitioner's case is that 1st petitioner is an institution established by the trust belonging to linguistic minority the tulu speaking community-the minority community in Karnataka and the same has not been disputed or been in controversy, as no counter has been filed against the petitioners case and claim for protection under article 30 and in view of article 30 of the constitution, the Provisions of the said act cannot be made applicable to the petitioners' institutions. ( 7 ) LASTLY, Sri santhosh hegde, learned counsel for the petitioners further submitted that Education Act and Karnataka educational institutions' (prohibition of capitation fee) Act, for short, the prohibition of 'capitation fee act', being the state laws which have received the assent of the president will operate and control the matter being special laws on the subject of education and the act will have no application in view of the Provisions of article 254 of the constitution. ( 8 ) THE above contentions made by the petitioners' counsel-sri santosh hegde, have been hotly contested by the learned standing counsel for the government of India (central government)-sri mukunda menon. Shri menon submitted that educational institutions run by the petitioners can be termed to be service for the purpose and within the framework of expression 'service' as referred in Section 2 (s) and 2 (r) of the act and as such, the act is applicable to the educational institutions including those run by the 1st petitioner. He submitted that realisation of capitation fee even exorbitantly by such institutions leads to nothing but commercialisation of education and brings it into framework of trade and the practice of realisation of capitation fee subject to the Provisions of this act makes it trade. Therefore, action taken by the respondents cannot be said to be without jurisdiction. Further, the learned central government standing counsel submitted that the Provisions of the act are not in contravention or in contradiction of the Provisions of the Education Act, but are in addition thereto, there is no question of inconsistency and contradictions, so as to hold that Provisions of Education Act and prohibition of capitation fee act are applicable and so there is no question of application of article 254 as urged by sri santhosh hegde. ( 9 ) I have applied my mind to the contentions made by the learned counsels for the parties on both the sides respectively. The first and the primary question to be considered in this case is: whether the educational activities and establishment of educational institutions-medical, technical, professional or otherwise is an act to which Provisions of the monopolies and restrictive trade activities act would apply or not, education or establishment of education is a trade or it is a service as per Section 2 (r) of the Act, if not, whether the opposite parties have acted within jurisdiction in issuing the order or the communication contained in annexures-a and c to this writ petition and if the Provisions of the act do cover the field of education or establishment of educational institutions, whether in the present case, the petitioner-trust is entitled to the protection of article 30 of the constitution? The consideration of second question will only be necessary if it is found that imparting of education or establishment of educational institutions can be said and be held to be trade or covered by the above Act, otherwise not. ( 10 ) BEFORE proceeding further, it will be profitable to make reference to the relevant Provisions of the act. The act was enacted to provide that the economic system does not result in concentration of economic power to the common detriment and for control of monopolies and for prohibition of monopolistic restrictive trade practices and matters connected therewith or incidental thereto. Section 2 of the act is the definition clause. Section 10 of the act makes provision for enquiry into monopolistic or restrictive trade practices by the commission. It provides that the commission may enquire into restrictive trade practices upon a complaint of facts as regards restrictive trade practice or facts which constitute restrictive trade practice from any trade or consumer association having a membership of not less than 25% or from 25% or more consumers. It further provides that enquiry may also be made in respect of the restrictive trade practice either upon a reference made to it by the central government or state government or upon an application made to it by director general or upon its own knowledge and information. Section 10 further confers the power upon the commission to make enquiry in respect of monopolistic trade practice upon a reference being made to it by the central government or on its own knowledge and information. Section 2 (1) of the act defines monopolistic trade practice. It reads as under:"2 (1): 'monopolistic trade practice' means a trade practice which has, or is likely to have, the effect of (i) maintaining the prices of goods or charges for the services at an unreasonable level by limiting, reducing or otherwise controlling the production, supply or distribution of goods of any description or the supply of any services or in any other manner; (ii) unreasonably preventing or lessening competition in the production, supply or distribution of any goods or in the supply of any services; (iii) limiting technical development or capital investment to the common detriment or allowing the quality of any goods produced, supplied or distributed, or any services rendered, in India to deteriorate". The expression 'restrictive trade practice' has been defined in the act as per clause (o) of Section 2 as under: 'restrictive trade practice' means a trade practice which has or may have, the effect of preventing, distorting or restricting competition in any manner and in particular (i) which tends to obstruct the flow of capital or resources into the stream or production, or (ii) which tends to bring about manipulation of prices, or conditions of delivery or to effect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions; Section 2 (u) defines the expression 'trade practice'. It reads as under: 2 (u): 'trade practice' means any practice relating to the carrying on of any trade, and includes (i) anything done by any person which controls or affects the price charged by, or the method of trading of any trader or any class of traders; (ii) a single or isolated action of any person in relation to any trade; the expression 'trade' has been defined as per Section 2 (s) as under: "2 (s): 'trade' means any trade, business, industry, profession or occupation relating to the production, supply, distribution, or control of goods and includes the provision of services". The expression 'service' has been defined in Section 2 (r): 2 (r): 'service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service". the expression 'undertaking' has been defined in Section 2 (v) as under:"2 (V): 'undertaking' means an enterprise which is, or has been, or is proposed to be engaged in the production, storage, supply, distribution,' acquisition or control of articles or goods, or the provision of services, of any kind, either directly or through one or more of its units or divisions, whether such unit or division is located at the same place where the undertaking is located or at a different place or at different places". ( 11 ) EXPLANATION i. in this clause at (a) as: (a): 'article' includes a new article and 'service' includes a new service;" (B): 'unit' or 'division' in relation to an undertaking includes (i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods; (ii) any branch or office established for the provision of any service". "explanation n. for the purpose of this clause, a body corporate which is or has been, engaged only in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate shall be deemed to be an undertaking. Explanation iii. for the removal of doubts, it is hereby declared that tin investment company shall be deemed, for the purposes of this Act, to be an undertaking". ( 12 ) THE Provisions of Section 2 (i) which defines monopolistic trade practice, and clause (o) of Section 2, which defines restrictive trade practice, clearly indicate that they refer to the trade practice. While the earlier, that is, the monopolistic trade practice is said to be the one that has or is likely to have the effect of maintaining the prices of goods or charges of services at unreasonable level, may be by limiting or reducing or controlling the production or supply of any goods of any description or the supply of services or trade practice has the effect of unreasonably preventing or lessening the competition in the matter of production supply or distribution of any goods or supply of service or have the effect of limiting the technical development or investment to the common detriment by allowing the quality of the goods or services to deteriorate or of increasing unreasonably the cost of production of any goods or of charges for the provision or maintenance of any services or of increasing unreasonably the prices of the goods or charges for service or of increasing the profits unreasonably which may be derived from production or supply or distribution of goods. Or that of provision of any service. Or that of provision of any service. Restrictive trade practice has also been defined as a trade practice having the effect of preventing, distorting or restricting competition in any manner and especially tending to obstruct the flow of capital or resources or tending to bring about manipulation of prices or conditions of services or to adversely affect the flow of supplies in the market of goods or services, so as to impose on the customer unjustified costs or restrictions. Thus, the monopolistic trade practice or restrictive trade practice is defined as a trade practice. The expression 'trade practice' as per clause (u) of Section 2 has been defined to mean as practice relating to carrying on business and includes things done by a person which controls or affects the price charged or method of trading. It may also include an isolated action of any person in relation to any trade. The question is whether establishing and running of educational institutions can be said to be a practice or a trade practice within four corners of Section 2 (u) or service within the meaning of clause (s) read with clause (r) of Section 2 of the act. A reading of these clauses per se show that the activities which may be said to be trade or trade practice or service under the Act, there must be an element of economic gain primarily. Trade as per definition in clause (s) of Section 2 has been defined to mean as trade, business, industry or profession or occupation, but it must relate to production, supply, distribution or control of goods and includes the provision of service and service is defined for the purpose of this act as service of any description which may be made available to a potential user for price or consideration, and the definition becomes illustrative and explains it as services of facility of financing, transport, process, supply of electricity energy, boarding or lodging or both or service offering entertainment and amusements or of purveying things or information, the question is: can education or establishing or running of educational institutions or otherwise be said to be a trade in the sense of the term as used in the act or a service of that nature? ( 13 ) THE learned counsel for the petitioners submitted that establishment of educational institutions is neither a trade nor business, nor are profession and occupation and nor can it be said as service. While, the government counsel emphasis that running of educational institutions may be termed to be service. Education could be defined as "a process of developing and training the powers and capabilities of human beings, and as the activities of preparing and fitting for the calling of business or for activity and usefulness in life and may be, particularly, directed to either mental, moral or physical powers and faculties but in its broadest sense it relates to all of them. ( 14 ) IN "words and phrases" permanent edition (volume 14) at page 125, it has been observed as under:"education as understood today connotes all those conditions cultivated by a given society as means of realisation in individual of the ideals of community as a whole. It has for its aim the development of the powers of men (1) by exercising each along its particular line, (2) by properly co-ordinating and subordinating them (3) by taking '. dvantage of law of habit and (4) by appealing to human interest and enthusiasm. It includes not only the narrow conception of instruction to which it was formerly limited, but embraces all the forms of human experience, owing to the recognition of the fact that every stimulus with its corresponding reaction has a definite effect on the character. It may be either mainly a esthetic, ethical, intellectual, physical or technical, but to be most satisfactory, it must involve and develop all the sides of human capacity". it has also been defined as a process for physical, mental and moral development 01 human being. It may be either mainly a esthetic, ethical, intellectual, physical or technical, but to be most satisfactory, it must involve and develop all the sides of human capacity". it has also been defined as a process for physical, mental and moral development 01 human being. ( 15 ) THE right to education under our Constitution has been accepted as implicit in right to life and it has been found by their lordships of the Supreme Court in many cases including the case of Miss Mohini Jain v State of Karnataka and others, as well as in the case of Bandhua Mukti Morcha v Union of India and others and lastly, in the case of unni krishnan, supra, that right of education is implicit and springs from the right to life guaranteed under article 21 and this right of education has been treated as one of transcedental importance in the life of an individual. In mohini jain's case, supra, their lordships of the supreme court laid it down that dignity of the man is invaluable. It is the duty of the state to protect the same. It is primarily the education which brings forth the dignity of man. An individual cannot be assured unless his personality is developed and the only way to that is to educate him. This is why the universal declaration of human rights, 1948 emphasises that education shall be directed to full development of human personality. Article 41 of iv chapter of the Constitution recognises an individual's right to education. Their lordships of the supreme court further emphasised in mohini jain's case, supra, about importance of education by observing it that right to life under article 21 and the dignity of individual cannot be assured unless it is accompanied by right of education. As the Constitution of India assures dignity of an individual or assures the dignity of the individual coupled with concept of fraternity, unity and integrity of the nation as per the preamble article 41 provides and obliges the state within the limits of its economic capacity and development, to make effective the Provisions for securing the citizens the right to education apart from right to work and public assistance mentioned therein. So, obligation has been cast within the limits of economic capacity and development to make effective endeavour to secure the right of education. So, obligation has been cast within the limits of economic capacity and development to make effective endeavour to secure the right of education. Under article 45, the state to make endeavour to provide within the span of 10 years prescribed thereunder free and compulsory education to all children until they complete the age of 14 years and article 46 again put obligation on the state to promote with special care the educational interest in addition to economic interest of the people belonging to weaker Section, particularly, the members belonging to schedule caste and schedule tribe. A conjoint reading of these articles of the Constitution really reveal that there is a right of education in every citizen, right of free and compulsory education up to the age of 14 years and state is directed to make its endeavour to provide compulsory and free education to the children of age of 14 years. In regard to other and further education, the obligation has been cast on the state to make effective provisions, but within the limits of its economical sources and capacity of economic development for securing the right of education. It means, the duty has been cast on the state to make endeavour and to make Provisions for securing the right of education. It may be done either by opening its own colleges or state controlled colleges or it may make provision for colleges, schools or otherwise recognised by it under law, that is, endeavour for promoting or encouraging philanthropic persons or otherwise to establish the educational institutions and to recognise them, so that the right of education may be secured not only by the Principal Activities of the state itself, but also by supplemental activity of the private institutions permitted and recognised by the state that may also be taken to be making efforts to secure the right of education as well as by making Provisions therein for protecting and promoting the educational interests of the weaker section. So, the state is to be under an obligation to establish the educational institutions to enable citizens to enjoy the said rights within its economic limits and capacity as well as by granting recognition to private institutions. may it in loose terms be called an agency on behalf of the state or we call it supplemental activity. So, the state is to be under an obligation to establish the educational institutions to enable citizens to enjoy the said rights within its economic limits and capacity as well as by granting recognition to private institutions. may it in loose terms be called an agency on behalf of the state or we call it supplemental activity. ( 16 ) IN india, as per culture and civilization and as per values of Indian culture and civilization, education has been recognized as one of pious obligations of human society and the establishing and running of educational institution has been considered to be a religious or a charitable object. The education has never been treated as a commodity for sale. There is an old proverb in hindi"vidyadhan mahadhan'. There is an old sanskrit shloka which reveals the importance of education in human life-"sahitya sangeet kala viheena sakshat pashu puccha vishan heena trinan-na-khadan napi jeevamana tava paramam pashunama", which means a man without education, literature, music or art is equal to an animal or cattle without tail or horn which does not take the grass or the like and by accident of fortune, it has got the form of a human being. In the case of Brown v Board of education, emphasized the importance of right of education: "today education is perhaps the most important function of state and local government. It is required in the performance of our basic responsibilities, even service in armed forces, it is very foundation of good citizenship. Today, it is the principal instrument in awakening the child to cultural values in preparing him for later professional training and in helping him to adjust normally to his environment. In these days it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of education". ( 17 ) THE framers of our Constitution recognised it and laid down as the obligation of the state to make prgvisions and to make endeavour to secure the right of education of the people to them but within its economic resources or its economic capacity as per article 41 of the constitution. ( 17 ) THE framers of our Constitution recognised it and laid down as the obligation of the state to make prgvisions and to make endeavour to secure the right of education of the people to them but within its economic resources or its economic capacity as per article 41 of the constitution. When it is the obligation of the state under articles 21, 41, 45 and 46 as provided therein and subject to the specific conditions provided therein, the education or imparting of education can be said firstly under our Constitution to be the obligation of the state within its resources and apart from state educational institutions or government schools etc. , its endeavours may include Provisions to be made in law for giving incentive and permission to group of individuals to establish educational institutions subject to the law enacted by it under entry 25 of the concurrent list, i. e. , list iii of vii schedule. Entry 25 of the concurrent list reads as under:"25. Education including technical education, medical education and university subject to the Provisions of entries 63, 64 and 66 of list-i, vocational and technical training of labour". entry being in the concurrent list, the power has been conferred on both state and the union government. Entries 63, 64 and 65 deal with the specific institution. Entry 63 of union list confers power on union government expressly to enact law with reference to the institutions which were at that time known as banaras hindu university, aligarh muslim university, university established in pursuance of article 371 (c) or any other institution declared by law to be institution of national importance. Entry 64 again gives exclusive power to parliament to legislate with respect to institutions for scientific and technical education financed by government of India and declared by parliament to be institutions of national importance or union agencies or institutions for professional, vocational or technical training including training of police officers. Entry 64 again gives exclusive power to parliament to legislate with respect to institutions for scientific and technical education financed by government of India and declared by parliament to be institutions of national importance or union agencies or institutions for professional, vocational or technical training including training of police officers. All institutions for promotion of special studies or research or institutions relating to scientific and technical assistance in the investigation and detection of right as per article 65 is again subject-matter of exclusive power of the union government and similarly liability relating to co-ordination and determination of standard institutions for higher education or research or scientific or technical institutions is a subject-matter of union list and the union is empowered to make law and make Provisions in regard thereto. Thus, with respect to education otherwise than covered by entries 63, 64 and 65 of the 1st list, both state and union governments have been given concurrent power to legislate on the matters covered by entry 25 of concurrent list. Reference to these entries have been made to emphasise that framers of the Constitution have treated education as a distinct subject from trade or industry as well as from commercial or industrial monopolies combined interests. As regards trade or commercial activities, the separate entries have been provided in the union list. Entries 41 and 42 of list I are they that refer to subject of trade and commerce with foreign countries' import and export across customs frontiers, while entry 42 relates to inter-state trade and commerce. Entry 26 of the state list is separate entry which provides for trade and commerce within the state subject to Provisions of entry 33 of list-iii. While, in the concurrent list, entry 21 deals with commercial and industrial monopolies combines and trusts and entry trade and commerce in production and supply of distribution of items mentioned in clauses (a) to (e) has been provided under entry 33. A perusal of these entries of the iii list read along with the Provisions of articles 41, 45 and 46 per se reveal that the framer of the Constitution did not consider the education to be something as trade, business or commercial activity. Education has been treated as a separate subject. A perusal of these entries of the iii list read along with the Provisions of articles 41, 45 and 46 per se reveal that the framer of the Constitution did not consider the education to be something as trade, business or commercial activity. Education has been treated as a separate subject. Establishment of educational institution has also been taken as a subject separate and distinct from trade, instead it had been taken to be part and parcel of entries relating to education subject to entries 63, 64, 65 and 66 of the union list. The scheme of education per se indicates that education has not been taken to be a commercial activity or a trade or a business or profession or occupation by the framer of the constitution. In unni kishnan's case, supra, it has been observed at paragraph-64 as under:"in each of these cases depending upon the statute, either "occupation" or "business" has come to be defined. Certainly, it cannot be contended that establishment of educational institution would be "business". Nor again could that be called trade, since no trading activity is carried on. Equally, it is not a profession. It is one thing to say that teaching is a profession, but, it is totally a different thing to urge that the establishment of an educational institution would be a profession. It may perhaps fall under the category of occupation provided no recognition is sought from the state or affiliation from the university is asked for on the basis that it is a fundamental right". in paragraph-69, the Supreme Court observes as under:"it is not mere an establishment of educational institutions that is urged by the petitioners, but to run the educational institution dependent on recognition by the state. There is absolutely no fundamental right to recognition in any citizen. The right to establishment and run the educational institution with states' recognition arises only on the state permitting pursuant to a policy decision or on the fulfilment of conditions of the statute. Therefore, where it is dependent on the permission under the statute or exercise of its power, it cannot qualify to be a fundamental right". ( 18 ) IN the case of St. Stephen's College v University of Delhi, their lordships of the Supreme Court laid it at page 609/10 as under:"the educational institutions are not business houses. They do not generate wealth. ( 18 ) IN the case of St. Stephen's College v University of Delhi, their lordships of the Supreme Court laid it at page 609/10 as under:"the educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. They do not have economic above that efforts. It is not possible to have educational institutions without state aid". Hon'ble b. p. jeevan reddy, j. , in his order in unni krishnan's case, supra, in paragraph-150, has been pleased to observe:"we have held the right of education to be implicit in the right to life, because of its inherent fundamental importance. As a matter of fact, we have referred to articles 41, 45 and 46, merely to determine the parameters etc. Private educational institutions have been treated as a supplemental activity or a activity supplemental to the main efforts by the state and not as a trade or business". ( 19 ) THEIR lordships of the Supreme Court in unni krishnan's case, supra, have been pleased to observe at page 2244:"we are certainly of the opinion that such activity (establishing of educational institutions) can neither be a trade or a business nor can it be a profession within the meaning of article 19 (g ). Trade or business activity normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since times immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as a trade or business. We agree with gajendragadkar, j. , that education in its true aspect is more a mission and vocation rather than profession, trade or business, however wide may be the denotation of the two latter words.---------the parliament too has manifested its intention repeatedly by enacting (u. g. c. Act, i. m. c. act and a. i. c. t. e. act) that commercialisation of education is not permissible and that no person shall be allowed to steal or March over a meritorious candidate, because of his economic power. The very same intention has been expressed by the legislature of andhra pradesh, karnataka, maharshtra, tamil nadu in the preamble to their respective enactments prohibiting charging of capitation fee". in paragraph-167 of the same judgment, it has been emphasised that establishing of educational institutions can by no stretch of imagination be treated as practicing any profession. An act of establishing or running educational institutions cannot be treated to be a matter of commerce. Their lordships further observed and laid that it is an activity supplemental to the functions performed by the state in this regard. The observations read as under:"clearly and undoubtedly the recognised affiliated private educational institutions supplement to the functions performed by the institutions of the state. Theirs is not an independent activity, but one closely allied and supplemental to the activity of the state". their lordship in para 169 further observes:"in the above circumstances, it is ideal to contend that imparting of education is a business or like any other business or that it is an activity akin to another activity like building of roads or bridges etc. . . . The private educational institutions merely supplement the effort of the state in educating the people, as explained above. It is not an independent activity, it is an activity supplemental to the Principal Activity carried on by the state. No private educational institution can survive or subsists without recognition and or affiliation. The bodies which grant recognition or affiliation are authorities of the state. In such a situation, it is obligatory in the interests of general public upon the authority granting recognition or affiliation, to insist upon such conditions as are appropriate to ensure not only education of requisite standard, but also fair and equal treatment in the matter of admission of students. Since the recognising of the affiliation authority is the state, it is under an obligation to impose such conditions as part of its duty enjoined upon it by article 14 of the constitution". this really reveals that educational activity or establishment of educational institutions by itself cannot be taken to be a trade or business as defined in Section 2 (s ). Trade for the purpose of 2 (s) means, trade, business, industry or occupation having relation to production, supply or distribution or control of goods. Education is not a commodity for sale or supply. Trade for the purpose of 2 (s) means, trade, business, industry or occupation having relation to production, supply or distribution or control of goods. Education is not a commodity for sale or supply. It cannot also be termed a service made available to a potential user as real obligation is on the state to make Provisions for securing the right of education of its peoples keeping pace with its economic capacity and development. Its endeavour may also include making Provisions of law encouraging and permitting other persons to establish private education institutions subject to permission and recognition to be granted by the state or its authorities, subject to conditions imposed by it to ensure requisite standards and also for equal and fair treatment in matter like admission of students. When it is the obligation of the state and private educational institutions perform activities supplemental to the main activity or functioning of the state, the institutions may be said to be performing or rendering service to the state by helping it or assisting in the performance of its obligations primarily and not to an individual potential user, who makes use of education. Apart from that as observed by their lordships of the Supreme Court in unni krishnan's case, supra, education cannot be taken as an activity akin to something like building of roads, bridges or Provisions for transport or the like. There is no element of profiteering in education or it may be said principal and primary motive of educational activity is not profiteering. That being the position, imparting of education and establishing of an educational institution cannot be taken to be a commercial activity or a trade as per definition given under clause (s) of Section 2 of the monopolies and restrictive trade practices Act, nor can the practice of carrying on or running of an institution be taken to be a trade practice within the meaning of clause (u) of Section 2 of the act. The preamble of the act really indicates that its object is to control the commercial activities, the activities which have the effect of resulting in concentration of means of production or economic power in few hand, as well as prohibiting the monopolies restrictive trade practices. This act in my opinion, does not apply or cover the activity of running the educational institutions. This act in my opinion, does not apply or cover the activity of running the educational institutions. ( 20 ) THE learned standing counsel for central government, Sri mukunda menon raised a contention to the effect that charging of capitation fee by the colleges has a tendency of making and rendering it to be a commercial activity. This question is well been considered by the Supreme Court in the cases of mohini jain and unni krishnan. In mohini jain's case, supra, their lordships of the Supreme Court condemned charging of capitation fee as a consideration for admission and held it to be illegal. It further held, the action of permitting the capitation fee to be charged by state recognised educational institutions to be ultra vires as it enable the rich to take admissions where poor have to withdraw due to financial inability. ( 21 ) IN unni krishnan's case, supra, after having pointed out the importance of private educational institutions, hon'ble Mr. Justice mohan observes:"therefore, as on today, it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly in higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the constitutional goals in this respect. It could be concluded that the private colleges are felt necessities of the time. That does not mean one should tolerate the "so called colleges" run in thatched huts with hardly any equipment with no or improvised laboratories, scarce facilities to learn in an unhealthy atmosphere, far from conducive to education. Such of them must be put down ruthlessly with an iron hand irrespective of who has started the institution, or who desires to set up such an institution, they are poisonous weeds in the field of education. Such of them must be put down ruthlessly with an iron hand irrespective of who has started the institution, who desire to set up such an institution, they are poisonous weeds in the field of education. Those who venture, are financial adventures without morals or scruples. Their only aim is to make money, driving a hard bargain, exploiting eagerness to acquire a professional degree which would be a passport for employment in a country rampant with unemployment. They could even be called pirates in the high seas of education". Those who venture, are financial adventures without morals or scruples. Their only aim is to make money, driving a hard bargain, exploiting eagerness to acquire a professional degree which would be a passport for employment in a country rampant with unemployment. They could even be called pirates in the high seas of education". in para-91 of the judgment, his lordship further observes as under:"however, a word of caution requires to be uttered. Not all the private institutions belong to this category. There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the colleges run by the government in many respects. They require encouragement. From this point of view the regulatory controls have to be continued and strengthened. Commercialisation of education, the racketeering must be prevented. The state would strive its utmost in this direction. Regulatory measures must so ensure that private educational institutions maintain minimum standards and facilities. Admission with all groups should be based only on merit. There may be reservations of seats in favour of the weaker sections of society and other groups which deserve special treatment. It cannot be gainsaid that profiteering is an evil. If a public utility like electricity could be controlled, certainly, professional colleges also require to be regulated". ( 22 ) IN the above noted unni krishnan's case, supra, Hon'ble Justice Sri b. p. jeevan reddy in paragraph-163 of the judgment has been pleased to observe that:"so far as un-aided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in governmental institutions. If they do so voluntarily, it is perfectly welcome. But, they cannot be compelled to do so for the simple reason that they have to meet the costs of imparting education from their own resources and the main source apart from donations and charities, if any, can only be the fees collected from the students. It is here that the concept of "self-financing educational institutions" and the "costs-based educational institutions" come in------- -. The costs of education may vary, even within the same faculty, from institution to institution. The facilities provided equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution. The court cannot certainly do this. It must be done by government or the university or such other authority as may be designated in that behalf. The costs of education may vary, even within the same faculty, from institution to institution. The facilities provided equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution. The court cannot certainly do this. It must be done by government or the university or such other authority as may be designated in that behalf. It will be profitable here to refer to the following observations of lordship Hon'ble Mr. Justice b. p. jeevan reddy as made in paras 169 and 180. In para-169, the material observations read as under: "the idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission, that is, at the root of several ills complained of. It is the discretion that has mainly led to commercialisation of educational institutions. "capitation fee" means charging or collecting amount beyond what is permitted by law; all the acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or anyone on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging of permitted fees by the private educational institutions which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as "capitation fee". All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by them, which may be called permitted fees, and to bar them from collecting anything other than permitted fees, which is what "capitation fee" means". in paragraph-180, their lordships observed that "the obligation created by articles 41, 45 and 46 of the Constitution can be discharged by state either by establishing institutions of its own or by aiding, recognising and or granting affiliation to private educational institutions. Where aid is not granted to a private educational institution and merely recognition or affiliation is granted, it may not be insisted that the private educational institutions shall charge only that fee as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge higher fee, not exceeding the ceiling limits in that behalf. The private educational institutions have to and are entitled to charge higher fee, not exceeding the ceiling limits in that behalf. ( 23 ) THE decisions lay down that no private educational institutions should be allowed to charge any money or fee higher or more than the ceiling limit which should be prescribed under the act. No doubt, they emphasised that private unaided schools had to bear all the burden of running the school on their shoulders. They may be allowed to charge a higher fee, because, they do not get aid of the government, they do not receive any aid, and those schools have to depend upon their own resources, particularly in a situation when the costs of education may become high and there is no aid from the government, but even then, the ceiling of fee scales is to be done by the states, so that the educational institutions may not become the source of capitation and may not lead to commercialisation of education. The charging of capitation fee has been prohibited under the Karnataka educational institutions prohibition of capitation fee act and has been made a penal offence. Similar Provisions would have been enacted in other states also. The private educational institutions have to abide by the conditions imposed or to be imposed by the government keeping in view the basic objects of the Constitution and the goal of education. No educational institution is possible to be run without recognition from the government and when no institution can be allowed to charge any fee or thing beyond the ceiling limit of the fees prescribed by the government under the Education Act and Karnataka prohibition of capitation fee act. It is farce to contend that the charging of the higher fee by private educational institutions than the fees charged for similar courses in government colleges or government aided colleges, but within the ceiling limits prescribed under the act would make or makes or renders the education or establishment of educational institutions to be trade, it is farce and is far from reality. The Karnataka Education Act along with Karnataka prohibition of capitation fee act and the conditions imposed on the private educational institutions, while granting recognition or subsequent thereto or under similar Education Act in other states, clearly reveal that education or establishment of educational institutions with the permission and recognition from the state or state authorities and subject to the conditions imposed on them from time to time cannot be termed to be a trade or business or calling not the continuous running of school by the managing bodies of the schools can be said to be a trade practice within the meaning of monopolies and restrictivce trade practice Act, 1969. Apart from that, the education being a distinct field and the establishment of educational institutions and administrtion and management thereof being controlled by educational laws such as Education Act, Karnataka prohibition of capitation fee act or the like can said, to be subject to the control under those acts and breach of any of the conditions or charging of fees than the fee ceiling prescribed can be dealt with under the special act dealing with educational institutions and not under monopolies and restrictive trade practices Act, 1969, in view of the Provisions of article 254 of the constitution, particularly when the states act referred to in this order have been assented by the president of India as well. Thus considered in my opinion, the education and the establishment of educational institutions or running of educational institutions cannot be termed to be a trade or trade practice nor can it be termed to be commercial activity to which the above act may be made applicable. ( 24 ) THAT as the above act is not applicable to the matters relating to education and educational institutions in my opinion, the opposite parties had no jurisdiction and power to issue the impugned notices to the petitioners dated July 20th, 1987 and October 7th, 1987 at annexures-a and c to this writ petition. If there is any breach of the Provisions of education act or prohibition of capitation fee act and those of the terms and conditions of recognition or if it is found, it is for the authorities under those acts to take suitable action. Thus considered in my opinion, the impugned notices, issued by the respondents under the above Act, are illegal and without jurisdiction. Thus considered in my opinion, the impugned notices, issued by the respondents under the above Act, are illegal and without jurisdiction. ( 25 ) THE said notices are quashed and the opposite parties are directed by a writ in the nature of writ of mandamus directing the opposite parties not to proceed against the petitioners as well as not to take any action under the above Act, that is, the monopolies and restrictive trade practices Act, 1969, as the impugned notices at annexures-a and c to this writ petition issued by the director-general of investigation and registration under the act are per se, illegal and without jurisdiction. This writ petition is thus, hereby allowed with costs. --- *** --- .