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Madhya Pradesh High Court · body

2012 DIGILAW 8 (MP)

Vikas Tiwari v. State of M. P.

2012-01-03

P.K.JAISWAL

body2012
ORDER 1. This is first application filed under section 438 of the CrPC by the applicant Vikas Tiwari, who is the Director of Indore Management Institute and Research Centre, Khandwa Road, Indore for grant of anticipatory bail. The applicant is apprehending his arrest in crime No. 443/2010 registered at Police Station-juni Indore, Indore for an offence punishable under section 420 of IPC. 2. An FIR has been lodged by complainant stating that he is a Head of inspecting group of M.P. Uchcha Shiksha Samiti. Vallabh Bhawan. Bhopal and Professor Chemical Science, Govt. Science and Commerce College Benjir Bhopal. Three member committee of inspection team inspected the Indore Management Institute and Research Centre. During inspection. they found that one of the course named PGDM (Post Graduate Diploma in Management) is not affiliated by Devi Ahilya Vishwa vidhyalaya nor any permission was granted by the said University and Govt. of M.P. The only permission granted is from AICTE (All India Council For Technical Education). It is alleged that the said institution is running the said Course in violation of section 7(2) and section 26 of M.P. Vishwa Vidhyalaya Adhiniyam, 1973. 3. Learned counsel for the applicant has submitted that there is no violation . of any of the provision of M.P. Vishwa Vidhyalaya Adhiniyam. 1973 nor any permission from DAVV or Govt. of M.P. is required for running the course of PGDM Course. He further submits that necessary permission for running the said course is granted from AICTE (All India Council For Technical Education). He also drew my attention to the letter dated 30th August, 2011 of Techinical Education M.P. Satpuda Bhavan, Bhopal in which it is stated that all rights confered regarding application to permission of PGDM Programme are with AICTE, New Delhi. He also submitted that PGDM Institutes are autonomous hence affiliation from local/other Universities are not compulsory. He lastly submits that even if the complaint is accepted in toto, no case for an offence punishable under section 420 of IPC can be made out against the present applicant and prays that this application for anticipatory bail on behalf of applicant be allowed. 4. On the other hand, learned Panel Lawyer for the respondent/State opposed the prayer for grant of anticipatory bail and submitted that mark-sheets issued by the Institute for PGDM post will not be recognised from any University. 4. On the other hand, learned Panel Lawyer for the respondent/State opposed the prayer for grant of anticipatory bail and submitted that mark-sheets issued by the Institute for PGDM post will not be recognised from any University. the applicant is running the said Course in violation of the provisions of section 7(2) of the Act. He also drew my attention to the opinion of the Office of the Advocate General in which it is stated that in the territorial jurisdiction of any university in the State of M.P. no educational institution which requires affiliation from university can be allowed to run without there being affiliation from the University in whose jurisdiction the institution is being opened. As per section 26 of the M.P. Vishwa vidhyalaya Adhiniyam, 1973, it is clear that affiliation to any educational institution by the University cannot be granted unless there is permission in favour of institution by the Commissioner, Higher Education. Learned Panel Lawyer lastly submitted that no permission has been obtained from the Higher Education to run the said PGDM Course and, therefore, no case for grant of anticipatory bail as prayed by the applicant is made out and prays for its rejection. 5. The validity of section 7 (2) of M.P. Vishwa VidhyalayaAdhiniyam, 1973 has been challenged in bunch of writ petitions wherein the Division Bench of Principal Seat of the M.P. High Court at Jabalpur vide order dated 13.9.2011 passed the following order which reads as under :- 2. This bunch of writ petitions challenge the orders of the Government of Madhya Pradesh prohibiting running of study centres/colleges within the territorial limit of any University in State of Madhya Pradesh which are admitted to the privileges (affiliated, for short) of Universities which are located outside the State of Madhya Pradesh and which have not being created by or under the authority of any Statute of the Madhya Pradesh Legislature. For exercise ' of such power to issue such an order the Madhya Pradesh Government relies upon section 7 (2) of the Madhya Pradesh Vishwa vidhyalaya, Adhiniyam, 1973 (for short referred hereinafter as the 1973 Act) which is enacted by the Legislature of Madhya Pradesh. For exercise ' of such power to issue such an order the Madhya Pradesh Government relies upon section 7 (2) of the Madhya Pradesh Vishwa vidhyalaya, Adhiniyam, 1973 (for short referred hereinafter as the 1973 Act) which is enacted by the Legislature of Madhya Pradesh. For ready reference the said provision is quoted below :- "7 (2) Notwithstanding anything contained in any other law for the time being in force, no college or educational institution situated ,within the territorial limits of any University shall be associated in any way or be admitted to any privileges of any other University incorporated by law in India and any such privilege granted by any such other University to any education institution within these limits prior to the date of the establishment of the University shall be deemed to be withdrawn on such establishment.", 3. A University is basically a body which has power to award graduation or post graduation 'degrees' or 'doctorates'. Such authority has to be conferred by Statute. The Universities located outside the State of Madhya Pradesh have been conferred with the authority to award such 'degrees etc either by Central Enactments or Enactments of the Legislatures of the States other than Madhya Pradesh. The 1973 Act has created 8 Universitites which are all located in Madhya Pradesh. No other University has been created by or under any other Enactment of the Madhya Pradesh Legislature. 4. Affiliating study-centres or colleges to a University has basically one effect. 5. The effect is that students studying in such college or study centre affiliated to an University, is treated as a regular student for appearing in the examination held by such University, whereas students studying in a college or study centre which is not so affiliated, is treated as a private student in the University examination. 6. The Madhya Pradesh State Lagislature cannot legislate providing that a University not created by or under the authority of a Statute enacted by it and not located in its territory, should not treat a student as a regular student but most necessarily treat such student as a private candidate in the examination conducted by such University. 7. There is a presumption that no Legislature exceeds its legislative jurisdiction and does not enact ultra vires Statutes. 7. There is a presumption that no Legislature exceeds its legislative jurisdiction and does not enact ultra vires Statutes. Therefore, on that presumption the only possible interpretation of Section 7(2) of the 1973 Act can be that the Madhya Pradesh Legislature has enacted this provision prohibiting the 8 Universities created by or under an enactment of Madhya Pradesh Legislature from affiliating a college within the territory of another University. 8. In that view of the matter, we find that the order issued by the Madhya Pradesh Government is outside the purview of the powers conferred upon section 7 (2) of the 1973 Act. Moreover, the said section only provides that , the colleges affiliated to a University operating within the territorial limits of another University will only loss the affiliation. It does not provide for closing down of the college. 9. It has been argued from the side of the Distance Education Council (for short referred as "DEC") and also from the side of the state Government that the study-centres are not permissible to be run for want of appropriate approval by the DEC or the University Grants Commission (for short UGC) or the respective Acts of other States under which the concerned Universities are incorporated or recognised. In this bunch of petitions, we are not concerned with these aspects, because it is always open to the DEC, the UGC or such other States to take appropriate action if the law of such States or the permissions granted by these bodies (DEC, UGC etc) are being violated by any University or any college. In this bunch of writ petitions the challenge is made to the order of the State Government which has been passed purportedly under the authority of section 7 (2) of the 1973 Act. We are therefore, confining the adjudication to that issue only. 10. The interpretation which is sought to be placed by the State Government upon section 7 (2) of the 1973 would necessarily mean extra territorial operation of such Statute. We are therefore, confining the adjudication to that issue only. 10. The interpretation which is sought to be placed by the State Government upon section 7 (2) of the 1973 would necessarily mean extra territorial operation of such Statute. The University which has been created by or under the authority of an enactment of Madhya Pradesh Legislature can be regulated by the said Legislature, and accordingly it is permissible for the said Legislature to prohibit any such University from granting any affiliation to any college or any category of college, but the Madhya Pradesh Legislature cannot in exercise of its legislative powers encroach upon the legislative authority of another State or Central Legislature by providing how a University created by or under the authority of an enactment either of a State or Central Legislature should behave. 11. In view of this, we hold that section 7 (2) of the 1973 Act only deals with Universities which have been created by or under the authority of any enactment of State Legislature of Madhya Pradesh and in order to save the vires of that Statute, the words "incorporated by any law in India" as used in section 7 (2) of the 1973 Act must be read down so as to apply only to such Universities which are created by or under the authority of an enactment of Madhya Pradesh Legislature and not to Universities created by or under the authority of Legislatures of other States or a Central Enactment. 12. The orders of the State Government under challenge are accordingly set aside to the extent to which they are in conflict with the law laid down above However. because we have not adjudicated upon whether the study centres violate any other enactments or any authoritative rules or guidelines of the DEC or the UGC, and accordingly, if such study-centre or colleges (by whatever name called are not permissible because of any such enactments or other binding guidelines or rules, it will be open to the concerned body (including the Government of Madhya Pradesh) to take such action as may be permissible under the law for said violation. 13. Accordingly, we direct the State Government to deal with the study centres and their related Universities which are the parties in this bunch of writ petitions in accordance with the law laid down above. This bunch of writ petitions is disposed of accordingly. 6. 13. Accordingly, we direct the State Government to deal with the study centres and their related Universities which are the parties in this bunch of writ petitions in accordance with the law laid down above. This bunch of writ petitions is disposed of accordingly. 6. On due consideration of the aforesaid fact and circumstances and the order passed by the Division of Principal Seat of Jabalpur on 13.9.2011, I am inclined to allow this application for grant of anticipatory bail. Accordingly the application for grant of anticipatory bail is allowed and it is directed that in the event of arrest of applicant Vikas Tiwari by the arresting officer. he shall be released on bail subject to his furnishing a personal bond in the sum of Rs.1.00,000/- (Rupees One Lakh Only) with one surety each in the like amount to the satisfaction of the Arresting Officer, subject to abiding the conditions enumerated under sections 438 (2) of CrPC. This order shall be valid for a period of thirty days from today. In the meanwhile, the applicant may apply for regular bail within the aforesaid period of thirty days before the competent Court. Manoj Biniwalle for applicant; Anil Ojha, Panel Lawyer for respondent/ State.