JUDGMENT : Soumitra Pal, J. This appeal has been preferred from a common judgment delivered on 3rd July, 2012 by the learned Single Judge in the writ petition being W.P. 4406 (W) of 2010 (Sisters of St. Joseph of Cluny v. The State of West Bengal & Ors.) and on the writ petition being W.P. No. 5002 (W) of 2010 (Governing Body of Cluny Women's College v. The State of West Bengal & ors.). By the said judgment the former writ petition - W.P. 4406 (W) of 2010 was dismissed and the latter was disposed of in view of reasonings given in the former writ petition. In the later writ petition, - W.P. No. 5002 (W) of 2010, the petitioners in W.P. 4406 (W) of 2010 was the respondents No. 4. Being aggrieved, the writ petitioner in W.P. 4406 (W) of 2010 has preferred this appeal. 2. The writ petition, being W.P. 4406 (W) of 2010, was moved with the following prayers:- "A. A declaration that statute 1 of the statutes relating to governing bodies of colleges of University of North Bengal is ultra vires and unconstitutional; B. A writ of mandamus or any other writ, direction or order restraining the 3rd respondent from exercising the functions of the governing body of Cluny Women's College and to restrain them from interfering with the functions of the governing body of Cluny Women's College constituted by the petitioner society;" (page 60 of the paper book). 3. It appears from the judgment impugned that prayer 'A' in W.P. 4406 (W) of 2010 was not pressed on behalf of the writ petitioner. The learned Single Judge after hearing the parties had held, inter alia, the following:- "I have considered the rival submissions advanced by the learned advocates appearing for the parties. It can be pointed out that section 11 of the Act of 2004 describes the functions of the Commission and section 12 describes the powers of the Commission. Section 12, 12A leave no manner of doubt that in the matter of granting minority status the National Commission has been given an appellate power. I am in any event bound by the Division Bench Judgment of this court. Section 12, 12A leave no manner of doubt that in the matter of granting minority status the National Commission has been given an appellate power. I am in any event bound by the Division Bench Judgment of this court. When the commission is the appellate authority and the competent authority is the original authority under the Act and the admitted fact is that the task of the original authority was performed by the appellate authority, there is hardly any scope for any debate that the order was without jurisdiction. The fact that the state or the University unsuccessfully challenged the order before the commission is altogether besides the issue. Any order, which is passed without jurisdiction is illegal and a nullity and such illegality can be set up at any stage when the illegal order is sought to be relied upon. For the aforesaid reason, it is not possible for me to grant any relief to the writ petition. This writ petition is, therefore, dismissed. There shall, however, be no order as to costs. In the writ petition No. 5002(W) of 2010 the prayer is to cancel and/or rescind the declaration dated 25th October, 2007. I already have held that the aforesaid order passed by the National Commission is illegal for reasons already discussed. Therefore, nothing survives of this writ petition namely W.P.5002(W) of 2010. That writ petition is accordingly disposed of." (pages 445 to 447 of the paper book). 4. It is evident from the judgment impugned that the learned Single Judge had followed the judgment of the Division Bench of this Court in Kiran Subbha v. State of West Bengal, 2008(2) CHN 530 . 5. At the very outset Mr. Jaydeep Kar, learned Senior Advocate appearing on behalf of the Governing Body, Cluny Women's College (under North Bengal University Statutes), Kalimpong, Darjeeling submitted that the appeal is not maintainable as the appellant had filed one appeal instead of two as judgment was passed in the writ petitions, being W.P. 4406(W) of 2010 and W.P. 5002 (W) of 2010. 6. Mr. Jaydeep Kar, learned Senior Advocate appearing on behalf of the Governing Body, Cluny Women's College (under North Bengal University Statutes), Kalimpong, Darjeeling submitted that the appeal is not maintainable as the appellant had filed one appeal instead of two as judgment was passed in the writ petitions, being W.P. 4406(W) of 2010 and W.P. 5002 (W) of 2010. 6. Mr. Kalyan Kumar Bandhyapadhay, learned Senior Advocate appearing for the appellant submitted that the question is whether the State respondents by appointing a governing body can usurp the powers and functions of the existing governing body when pursuant to an application the National Commission for Minority Educational Institutions ("National Commission" for short) under the provisions of the National Commission Minority Education Institution Act, 2004 (for short 'the 2004 Act') by an order dated 23rd September, 2007 had passed an order declaring that the appellant is a Minority Educational Institution within the meaning of section 2(g) of the 2004 Act. Submission was as the society, which runs the college, has been enjoying minority status by notification dated 23rd May, 1974 issued by the State of West Bengal when neither the West Bengal Minorities' Commission Act, 1996 (for short 1996 Act) nor the 2004 Act had come into force and as no argument was advanced that there existed a Competent Authority for deciding the status of an institution and as in the said proceedings before the National Commission despite notice none had appeared on behalf of the respondents and as on 25th October, 2007 National Commission had made a declaration that the college is a Minority Educational Institution covered under Article 30 of the Constitution of India, the State and the North Bengal University (hereinafter referred to as "NBU") were estopped from questioning the order of the National Commission. Moreover, as the application of the NBU for recall of the said order granting status was dismissed by order dated 5th November, 2009 passed by the National Commission and as NBU had accepted the said order and the grant of status is final and binding, the learned Single Judge erred in passing the judgment under challenge. Assuming the erstwhile authorities of the college by letter dated 16th December, 1997 addressed to the NBU had given up its minority status such waiver cannot take away the right guaranteed under Article 30 of the Constitution of India which is inalienable. Assuming the erstwhile authorities of the college by letter dated 16th December, 1997 addressed to the NBU had given up its minority status such waiver cannot take away the right guaranteed under Article 30 of the Constitution of India which is inalienable. Since section 11(f) of the 2004 Act, an independent provision, confers original jurisdiction on the National Commission to decide all questions relating to the status of any institution as a Minority Educational Institution and the National Commission has the authority to declare status. Assuming there is conflict of jurisdiction, since the choice of forum lies with the appellant, the order declaring such status cannot be nullified by the State without challenging the same before the appropriate forum. In support of his submission Mr. Bandyopadhay had relied on the following judgments:- (1) Dhannalal v. Kalwatibai, (2002) 6 SCC 16 ; (2) T.M.A. Pai Foundation v. State of Karnataka: (2002) 8 SCC 481 ; (3) Nar Singh Pal v. Union of India: 2000 (3) SCC 588 ; (4) Pramati Educational & Cultural Trust v. Union of India: 2014 (8) SCC 1 ; (5) Olga Tellis v. Bombay Municipal Corporation: AIR 1986 SC 180 ; (6) Kiran Subbha v. State of West Bengal: 2008(2) CHN 530 ; and on an order passed by the Supreme Court on 6th December, 2012 in Civil Appeal No. 3070 of 2004 (Governing Body of P.A.E.M. College v. State of Jharkhand); and on an unreported judgment delivered on 26th November, 2015 in National Commission for Minority Edu. Institutions v. Abhinawa Sewa Sansthan Mahavidyalaya by the Division Bench of the Allahabad High Court. 7. Mr. Kar, learned Senior Advocate appearing on behalf of the Governing Body, Cluny Women's College, under North Bengal University Statutes, a respondent, submitted that it is evident from the Memorandum of Association that the object of the society - Sister of St. Joseph of Cluny - was to establish a secular institution which was also reflected from the letter dated 16th December, 1997 addressed by the society to the Inspector of College, NBU. It is evident from the inspection report dated 10th January, 1998 prepared by NBU that though the appellants initially intended to set up a college with minority status, later it was given up. It is evident from the inspection report dated 10th January, 1998 prepared by NBU that though the appellants initially intended to set up a college with minority status, later it was given up. Subsequently by intimation dated 21st July 1998 State had approved the establishment of the college to be run in the manner prescribed in the statute of the affiliating university - NBU - on condition that no special constitution of the Governing Body would be allowed and teaching staff would be appointed on the recommendation of the West Bengal College Service Commission and college would be governed by the West Bengal (Payment of Salaries) Act, 1996. Later by notification dated 13th September, 2004 NBU granted permanent affiliation from 2003-2004 academic session which the appellant accepted. Though the appellant did not seek minority status, however, in 2007 the Society applied before the National Commission for grant of such status. By an order dated 23rd October, 2007 such status was granted. Accordingly on 25th October, 2007 National Commission issued a certificate. Later an application dated 7th December, 2008 was filed by NBU before the National Commission for recall of the order dated 23rd October, 2007 which by order dated 5th November, 2009 was rejected. Keeping this factual aspect in mind it was submitted that after amendment of section 10 of the 2004 Act with effect from 23rd January, 2006, it was incumbent on the part of the appellant to apply before the Competent Authority appointed by the State Government under the 1996 Act for grant of no objection certificate, which it ignored. Rather the college in 2007 under section 11(f) of the 2004 Act had applied before the National Commission for the grant of minority status. Since jurisdiction, under section 11(f), whether original or appellate, has not been spelt out and as there is no mechanism under the 2004 Act as to how power under section 11(f) has to be exercised, section 11(f) has to be read with sections 12A and 12B. Moreover as National Commission for Minority Educational Institution (Procedure for Appeal) Rules, 2006 lay down the rules for filing appeal, the Commission under the Statute cannot exercise original jurisdiction. Since the original jurisdiction cannot be exercised by the superior authority which is to be exercised by the authority of the first instance, the order of the National Commission is without jurisdiction. Since the original jurisdiction cannot be exercised by the superior authority which is to be exercised by the authority of the first instance, the order of the National Commission is without jurisdiction. Submission was that the order passed by the National Commission without jurisdiction was a nullity and that its invalidity could be set up wherever it is sought to be enforced or relied on and such question can be taken even at the stage of execution of the order or even in collateral proceedings. A defect of jurisdiction strikes at the very authority of the Court or Tribunal to pass an order and cannot be cured by consent of the parties. Submission was the judgment in Kiran Subbha (supra) followed by the learned Single Judge covers the field and is not an obiter dicta. Mr. Kar had relied on the following judgments:- (1) Additional District Magistrate, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521 ; (2) State of Punjab v. Harnek Singh: 2002(3) SCC 482; (3) Director of Settlements. A.P v. M.R. Aparao: 2002(4) SCC 638; (4) Manoharlal (dead) by Lrs. v. Ugrasen (dead) by Lrs.: (2010) 11SCC 557; (5) Joint Action Committee of AIR Line Pilots' Association of India (ALPAI) v. Director General of Civil Aviation: (2011) 5 SCC 435 , (6) Central Bureau of Investivation v. Kishore Singh: (2011) 6 SCC 369 and (7) Kiran Singh v. Chaman Paswan: 1955 SCR 117 . 8. Mrs. Shampa Sarkar, learned advocate appearing on behalf of NBU, adopting the submission of Mr. Kar and referring to the Inspection Report prepared by the Inspector of Colleges, NBU, submitted that evidently at the time of initiation of the College the society had no intention to set up a minority institution. Grant of temporary affiliation was followed by permanent affiliation. College applied to the UGC for central Government assistance and was listed as a non Government College. The Memorandum of Association does not reveal that it is a minority institution. Had it been a minority institution, the Administrator would not have been appointed. Accordingly on 30th June, 2001 the first Governing Body was constituted under Statute I of NBU and at present the fourth Governing Body is functioning. Thus there is nothing to demonstrate that the College is a minority institution. Had it been a minority institution, the Administrator would not have been appointed. Accordingly on 30th June, 2001 the first Governing Body was constituted under Statute I of NBU and at present the fourth Governing Body is functioning. Thus there is nothing to demonstrate that the College is a minority institution. Referring to the 2004 Act submission was section 11(f) has to be read with the other provisions and the objects and reasons of the statute. 9. Mr. Ayanabha Raha, learned advocate for Gorkha Territorial Administration adopted the submission of Mr. Kar and Mrs. Sarkar. 10. Mr. Joytosh Majumdar, learned Assistant Additional Advocate General in tune with the argument advanced by Mr. Kar submitted under section 2(aa) (ii) State is the appropriate authority and it plays a pivotal role. Though under the 1996 Act, there is a Competent Authority appointed by the State, however, no application was filed under section 10 of the 2004 Act for the grant of no objection certificate for the establishment of a Minority Educational Institution which is mandatory. Rather disregarding the statutory provisions and bypassing section 10 an application was filed by the appellant under section 11(f) before the National Commission. According to him section 11(f) has to be read with section 12B and not in isolation. Therefore, as the National Commission is an appellate forum, the order passed is without any legal foundation. 11. Mr. Piyus Chaturvedi, learned advocate for the National Commission for Minority Educational Institution submitted that the order of the learned Single Judge tends to determine the power of the Commission. The consent of the Competent Authority to grant no objection certificate to establish a minority educational institution does not apply to pre-existing institutions which are not covered by an order of the Competent Authority. Referring to sections 11(f), 12-A and 12-B, which were introduced by amendments in 2006, submission was powers under section 11(f) are not subservient to sections 12-A and 12-B of the 2004 Act. Under section 11(f) and section 12-B original jurisdiction and appellate power respectively have been conferred. Under the Act, National Commission can grant status by making a declaration which can be cancelled under section 12-C. Further section 11(f), if read with section 11(e), is not dependent on any condition. Under section 11(f) and section 12-B original jurisdiction and appellate power respectively have been conferred. Under the Act, National Commission can grant status by making a declaration which can be cancelled under section 12-C. Further section 11(f), if read with section 11(e), is not dependent on any condition. The power given to the National Commission under section 11(f) is not only to decide all questions relating to the minority status but also to declare the said status of the applicant institution. The word 'decide' referred in section 11(f) of the 2004 Act denotes the function and word 'declare' denotes the powers of the National Commission to grant minority status. Thus section 11(f) is an independent provision. Accordingly in discharge of its functions under section 11(f) power was exercised by the National Commission. Submission was the powers of the Minority Commission was not an issue in Kiran Subbha (supra). Moreover the issues raised in the appeal are not covered by said judgment in Kiran Subbha (supra) as in paragraph 52 thereof it has been made clear that the order will not be treated as a precedent. Rather the issue whether the National Commission has the original jurisdiction is covered by the unreported judgment of the Allahabad High Court in National Commission for Minority Edu. Institutions v. Abhinawa Sewa Sansthan Mahavidyalaya. 12. So far as the point of maintainability of the appeal raised by Mr. Kar is concerned, we are of the view that as the issue raised by the parties is a substantial question of law, we proceed to deal with the matter ignoring the point of maintainability which in our view is trivial in nature. 13. The issue which requires to be considered is whether the learned Single Judge was justified in holding that the 2004 Act leaves no manner of doubt that in the matter of granting minority status the National Commission has been given the Appellate Power. 14. In order to answer the question it is appropriate to refer the relevant provisions of the 2004 Act which are set out herein below :- "2. Definitions. 14. In order to answer the question it is appropriate to refer the relevant provisions of the 2004 Act which are set out herein below :- "2. Definitions. - In this Act, unless the context otherwise requires,- (aa) "appropriate Government" means, - (i) in relation to an educational institution recognized for conducting its programmes of studies under any Act of Parliament, the Central Government; and (ii) 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; (ca) "Competent authority" means the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities; Section 2 (g) "Minority Educational Institution" means a college or an educational institution established and administered by a minority or minorities; Section 10. Right to establish a Minority Educational Institution. - (1) Subject to the provisions contained in any other law for the time being in force, any person, who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose. Section 10(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. Section 10(4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force. 11. 11. Functions of Commission.- Notwithstanding anything contained in any other law for the time being in force, the Commission shall- (f) decide all questions relating to the status of any institution as a Minority educational Institution and declare its status as such; 12-A. Appeal against orders of the Competent authority.-(1) Any person aggrieved by the order of refusal to grant no objection certificate under subsection (2) of section 10 by the Competent authority for establishing a Minority Educational Institution, may prefer an appeal against such order to the Commission. 12-B. 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 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. Explanation.- For the purposes of this section and section 12-C, "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." (Emphasis supplied) 15. From a perusal of the relevant provisions of the 2004 Act it is evident that any person intending to establish a Minority Educational Institution may apply to the Competent Authority for the grant of no objection certificate. "Competent Authority" means the authority appointed by the "appropriate Government" to grant no objection certificate for the establishment of any educational institution by the minorities. In the State of West Bengal "appropriate Government" means any educational institution other than educational institution recognized under any Act of Parliament recognized for conducting its programmes of studies under any State Act. Under section 10(2)(b) after an application is furnished the Competent Authority may grant no objection certificate or reject the same. In the State of West Bengal "appropriate Government" means any educational institution other than educational institution recognized under any Act of Parliament recognized for conducting its programmes of studies under any State Act. Under section 10(2)(b) after an application is furnished the Competent Authority may grant no objection certificate or reject the same. If rejected, remedy is by way of preferring appeal under section 12-A before the National Commission. Now as evident from the scheme of the 2004 Act, a Minority Educational Institution established pursuant to the grant of no objection certificate, in view of section 12-B read with the 'Explanation', may apply before an Authority or Officer or Commission established under any law for the time in force or under any order of the Appropriate Government for the purpose of granting a certificate of minority status. Under section 12-B(1) if such application is rejected by the said "Authority", the aggrieved person has the right to prefer appeal before the Commission. Hence, under the 2004 Act where an application for grant of status is rejected, the National Commission is the appellate authority. 16. Perusing the writ petition annexed to the Paper Book, it is evident that the college since its inception, as evident from the letter dated 21st July, 1998 addressed by the Government of West Bengal, Higher Education Department, had accepted the condition that it "will be run in the manner prescribed in the statute of the affiliating university" and "No special Constitution of the Government Body shall be allowed". College had also accepted the condition that the "Teaching staff shall be appointed on the recommendation of the West Bengal College Service Commission and recruitment to non-teaching posts should be made subject to observance of the recruitment rules prescribed by the Government and provisions of the statute of the affiliating university….." and "The college shall be governed by the West Bengal (Payment of Salaries) Act, 1978." (page 86 of the paper book) Subsequently by notice dated 13th September, 2004, from 2003-04 academic session permanent affiliation was granted to the college. Thereafter the appellants had applied before the National Commission for grant of minority status. By order dated 23rd October, 2007 the National Commission held that the college is a Minority Educational Institution within the meaning of the 2004 Act. Thereafter the appellants had applied before the National Commission for grant of minority status. By order dated 23rd October, 2007 the National Commission held that the college is a Minority Educational Institution within the meaning of the 2004 Act. On 25th October, 2007 declaration under section 2(g) was issued declaring the college a Minority Educational Institution covered under Article 30 of the Constitution of India. 17. There is no dispute with regard to the proposition of law that there cannot be waiver of fundamental rights. In Nar Singh Pal (supra) it was held that "Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution" (paragraph 13) which was in reiteration of the principle of law laid down by the Supreme Court in Olga Tellis (supra). 18. As seen from the Statement of Objects and Reasons, the 2004 Act was enacted to set up a Commission which would be an effective forum in deciding matters of deprivation or violation of rights of the minorities guaranteed under Article 30 of the Constitution. In the instant case the appellants seek enforcement of fundamental rights conferred under Article 30 of the Constitution that is the "Right of minorities to establish and administer educational institution" which "is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice." (paragraph 138- T.M.A Pai Foundation (supra). The same view was followed in Pramati Educational and Cultural Trust (supra) wherein it was held "Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures……" (paragraph 54). As seen from facts, the erstwhile Governing Body of the college had applied before NBU for affiliation foregoing its fundamental rights. But does it preclude the subsequent Governing Body from exercising such right? Since there cannot be waiver of fundamental rights as it is inalienable, it can be exercised at any stage as correctly contended by Mr. Bandyopadhyay. As seen from facts, the erstwhile Governing Body of the college had applied before NBU for affiliation foregoing its fundamental rights. But does it preclude the subsequent Governing Body from exercising such right? Since there cannot be waiver of fundamental rights as it is inalienable, it can be exercised at any stage as correctly contended by Mr. Bandyopadhyay. 19. Now adverting to facts we find that in the year 2007 the appellant had applied before the National Commission for grant of minority status. Was the step in consonance with the provisions of the 2004 Act? As noted under section 10(1) any person who desires to establish Minority Educational Institution has the right to apply before the Competent Authority for the grant of no objection certificate. After such no objection certificate is granted, as stipulated in 'Explanation' to section 12-B, the person has a right to apply before the authority established by the Central Government or any State Government for grant of minority status of such educational institution. Therefore an institution which had secured the no objection certificate is competent to apply before the "authority" for grant of status. If such application is rejected, under section 12-B the aggrieved person may prefer appeal against such order of the authority to the National Commission. In the instant, case as evident from record, the college never applied before the West Bengal Minorities' Commission - the Competent Authority, - for grant of no objection certificate. Rather in the year 2007 the college had straightaway applied before the National Commission for grant of minority status. The National Commission by order dated 23rd October, 2007 held that the college is a minority educational institution within the meaning of section 2(g) of the Act and on 25th October, 2007 issued a declaration that it is a minority educational institution under Article 30 of the Constitution. Since under the 2004 Act application for grant of minority status has to be preceded by the grant of no objection certificate for the establishment of an educational institution, the order of the National Commission is without jurisdiction. Since under the 2004 Act application for grant of minority status has to be preceded by the grant of no objection certificate for the establishment of an educational institution, the order of the National Commission is without jurisdiction. It may be noted that the appellant during hearing had contended that since the State respondents had accepted the order passed by the Commission or as NBU chose not to challenge the order dated 5th November, 2009 rejecting the application of the University for recall of the order granting minority status, the respondents were estopped from questioning the order of the National Commission. In our view since the Commission had no authority to pass the order, the order is void and thus incapable of being acted upon. In this regard we find support from the judgment of the Supreme Court in Kiran Singh (supra) wherein it was held "It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties (page 121). That the Commission by passing the order had erred in usurping the power of the 'authority' under 'Explanation' to section 12-B (1) finds support from the law laid down in Supreme Court in Manoharlal (supra) wherein it has held "Therefore, the law on the question can be summarized to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act." (paragraph 23) Since there is no conflict in the exercise of jurisdiction, the principles of law laid down in paragraphs 22 and 23 in Dhannalal (supra), relied on behalf of the appellant, are not applicable. That the Commission is an Appellate Body is evident from section 12-B(1) and the 'Explanation' thereto as it is empowered to hear appeals from any order of the appropriate Government rejecting the grant of minority status. The argument on behalf of the appellant that section 11(f) is an independent provision which grants original jurisdiction on the National Commission to decide all questions relating to status of any institution as a Minority Educational Institution, apart from the appellate power under section 12-B, cannot be accepted on a perusal of sections 11 and 12-B. While section 11 is under the title "Functions of Commission", section 12-B is under the title "Power of Commission to decide on the minority status of an educational institution". While "functions" in section 11 spell out the duties of the Commission, including the obligation to "decide" the question of status, one has to see whether in discharge of such function National Commission has been conferred with such "power". It is under section 12-B "Power" or authority is bestowed on the Commission to act in accordance with the statutory mandate. Significantly sections 12, 12-A, 12-B, 12-C, 12-D and 12-E provide how power is to be exercised and decision is to be reached by the National Commission in discharge in its "functions". Therefore, as seen from the provisions of the Act, the "Functions" and "Power" of the Commission are distinct and separate. The distinction becomes clear since under section 12-B appellate "Power" has been conferred on the Commission to "decide" on the minority status of an educational institution from any order passed by the Central or any State Government rejecting an application for the grant of such status and there is no concurrent power to entertain an original application. It becomes clear as the Rule 4 of the National Commission for Minority Educational Institutions (Procedure for Appeal) Rules, 2006 prescribes that a Memorandum of Appeal shall be presented in the Form annexed to the Rules. It becomes clear as the Rule 4 of the National Commission for Minority Educational Institutions (Procedure for Appeal) Rules, 2006 prescribes that a Memorandum of Appeal shall be presented in the Form annexed to the Rules. The said Form prescribes how an appeal is to be filed under sections 12-A(1) and 12-B(1) of the 2004 Act. Hence, it would be a mistake to hold that "Functions" and "Power" are synonymous as sought to be contended by the appellants. The unreported judgment of the Allahabad High Court in the Special Appeal Defective No. 552 of 2015 (National Commission for Minority Edu. Institutions. v. Abhinawa Sewa Sansthan Mahavidyalya, delivered on 26th November, 2015 is per incuriam as attention of the Court was not drawn to section 10(4) Explanation B as correctly contended by Mr. Kar as establishment of a Minority Educational Institution is sine qua non for a person seeking minority status of such institution. That the National Commission is clothed with the powers of an Appellate Authority is evident from the order of the Supreme Court dated 6th December, 2012 passed in Civil Appeal No. 3070 of 2004 (Governing Body of P.A.E.M College v. State of Jharkhand) wherein the college which had suffered an order rejecting the application for grant of minority status, confirmed by the High Court by its judgment dated 9th March, 2004, that is before the 2004 Act had come into force, was granted opportunity to approach the Commission for declaration of its status as minority institution. 20. Thus, for the reasons as aforesaid, the appeal is dismissed. I have had the privilege of going through the judgment prepared by S. Pal J. I respectfully concur with the views expressed by his Lordship. However in addition to what has been held by S. Pal J. I add a few paragraphs in support of the views taken by His Lordship. 22. Evidently 2004 Act came into force on 6th January, 2005. The amended provisions which came into force with effect from January 23, 2006 bestowing more functions and powers on the National Commission which will be dealt with hereinafter. 23. I have also examined the judgment of Kiran Subbha relied on by the Trial Court in dismissing the writ petition being W.P. 4406 (W) of 2010 and in disposing of W.P. 5002(W) of 2010. 23. I have also examined the judgment of Kiran Subbha relied on by the Trial Court in dismissing the writ petition being W.P. 4406 (W) of 2010 and in disposing of W.P. 5002(W) of 2010. The reliefs sought for in Kiran Subbha (supra) were as under:- (a) Writ in the nature of Mandamus be issued thereby declaring that the Nepali/Gorkha speaking people of hill areas of Darjeeling are linguistic minorities; (b) Writ in the nature of mandamus be issued thereby declaring that the Schools/institutions in the hill area of Darjeeling are established and administered by the linguistic minorities and as such the provisions of West Bengal School Service Commission Act, 1997; and the amendments thereunder are not applicable in the hill areas of Darjeeling; (c) Writ in the nature of mandamus be issued thereby restraining the 'concerned respondent authorities from imposing the provisions of West Bengal School Service Commission Act, 1997 and the amendments' made thereunder to School/institutions in the hill areas of Darjeeling. 24. In the present case dispute arose, when even after the order dated 23rd October, 2010 minority status of the Women's College was declared on 25th October, 2007 by the National Commission, the appellant were prevented by the respondents in fulfilling its aims and objectives from constituting its governing body. 25. Now let the factual difference between the case in Kiran Subbha (supra) and in the case in hand be considered. In the case of Kiran Subbha (supra) the petitioners had sought for a declaration of their status as a linguistic minority since there is Nepali/Gorkha speaks people and also for a declaration that the West Bengal Service Commission Act 1997 was not applicable to the hill areas of Darjelling. Whereas, in the case in hand, it is contended that despite of having the status certificate dated 25th October, 2007 from the National Commission, the respondent authority had raised hindrance on the plea that the rules and regulations of the University are applicable. This according to the appellant was in violation of Article 30(1) of the Constitution. It is pertinent to note that the respondent No. 3 had filed a separate writ petition being W.P. 5002(W) of 2010 challenging the certificate dated 25th October, 2007 issued by the National Commission on the ground that the National Commission had no jurisdiction to issue such status certificate. The certificate declaring status therefore is void. It is pertinent to note that the respondent No. 3 had filed a separate writ petition being W.P. 5002(W) of 2010 challenging the certificate dated 25th October, 2007 issued by the National Commission on the ground that the National Commission had no jurisdiction to issue such status certificate. The certificate declaring status therefore is void. Submission was if objection certificate is issued by the State authorities under section 10, being the first step, only thereafter such certificate may be granted by the National Commission to declare the minority status if an application is so made. To proceed further it is appropriate to refer to the order dated 23rd October, 2007 passed by the National Commission which is as follows: "F.No. 506 of 2007 National Commission for Minority Educational Institutions *********** Present: Sr. Sohia Rai for the petitioner. None for the respondent. Order 23.10.2007 Despite service of notice, there is no appearance on behalf of the respondent. Hence, the case is proceeded ex-parte. The State Government has not notified any authority to grant minority status certificate to a minority educational institution. Hence, this is a fit case for intervention by this Commission. The petitioner stated that the college is an aided institution Sr. Sohia Rai produced the documents which clearly prove that the Sisters of St. Joseph of Cluny, West Bengal is a registered society; that all the founding members of the said society are from the Christian community; that the members of the present managing Committee are also Christians; and that the petitioner institution has been established and is being maintained by the said society. Relying on the said documentary evidence, I have no hesitation in coming to the conclusion that the petitioner institution is a minority educational institution within the meaning of Section 2 (g) of the National Commission for Minority Educational Institutions Act. A certificate be issued accordingly." Pursuant to the aforesaid order dated 23rd October, 2007 the National Commission on 25th October, 2007 had issued a minority status declaration certificate which is as under:- "F. No. 506 of 2007 October 25, 2007 On consideration of the documentary evidence produced before the commission, the commission is satisfied that Cluny Women's College, Calvary Road, 8th Mile, Kalimpong P.O., Dist. Darjeeling, West Bengal, managed by the Sisters of St. Darjeeling, West Bengal, managed by the Sisters of St. Joseph of Cluny, West Bengal, exclusively is a minority educational institution within the meaning of section 2(g) of the National Commission for Minority Education Institutions Act 2004. Consequently, it is hereby declared that the aforesaid College is a Minority Educational Institution covered under article 30 of the Constitution of India. Given under my hand and the seal of the commission." Admittedly the process of declaring minority status by the National Commission was the outcome of the letter dated 27th June, 2007 submitted by Sister Teresa Rai as President of St. Joseph of Cluny, West Bengal enclosing eight documents. The text of the letter dated 27th June, 2007 is as under:- Dated: 27th June, 2007 "To The Chairman National Commission for Minority Educational Institutions (Govt. of India) Subject: Request for issue of Minority Status Certificate Respected Sir, I, Sister Teresa Rai, the President of the Society of Sisters of St. Joseph of Cluny, shall be much obliged if you would kindly issue the Status Certificate of Minority Educational Institution for Cluny Women's College, Kalimpong, District Darjeeling in the state of West Bengal. I enclose herein the following documents for your kind perusal: 1. Certificate of Registration of Societies. 2. Names of the Founder Body of the Society. 3. Names of the present Founder Body of the Society. 4. Memorandum and Rules and Regulations of Sisters of St. Joseph of Cluny. 5. Letter of permission granted from the office of the Secretary, Council for Under-graduate Studies, University of North Bengal, to start Cluny Women's College at Kalimpong. 6. Names of the Governing Body Members of Cluny Women's College, Kalimpong. 7. Letter of Permanent Affiliation granted by U.G. C. Under Sections 2(f) and 12(b) of the U.G. C. Act, 1956. 8. Letter of Permanent Affiliation granted by North Bengal University, District Darjeeling, West Bengal. Thanking you in anticipation, Yours Sincerely Sister Teresa Rai President Copy to: 1. Rev. Valson Thampu, Hon'ble Member, NCMEI 2. Fr. P.P. George, SDB, Coordinator, NCMEI 26. Letter of Permanent Affiliation granted by U.G. C. Under Sections 2(f) and 12(b) of the U.G. C. Act, 1956. 8. Letter of Permanent Affiliation granted by North Bengal University, District Darjeeling, West Bengal. Thanking you in anticipation, Yours Sincerely Sister Teresa Rai President Copy to: 1. Rev. Valson Thampu, Hon'ble Member, NCMEI 2. Fr. P.P. George, SDB, Coordinator, NCMEI 26. To exercise the constitutional right under Article 30 of the Constitution of India at the very outset I should set out the legible meaning of the words "established and administered" which may be borrowed from paragraph 28 of the judgment of T. Varghese George v. Kora K. & Others relevant portion of which is as follows:- "Paragraph 28........the words 'established and administered' in the article must be read conjunctively and if so read it gives the right to the minority to administer an educational institution provided it has been established by it. We are of the opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. The two words in Article 30(1) must be read together and so the article gives the right to the minority to administer institutions established by it if the educational institution has not been established by a minority it cannot claim the right to administer it under Article 30(1)." 27. This Court in deciding the case of Kiran Subbah took note of the landmark decision of T.M. Pai Foundation. A few relevant paragraphs from the case of Kiran Subbah are accordingly set out hereunder:- Paragraph:-32 "How minority either in religion or in language can be adjudged has been laid down by the Supreme Court in the case of T.M. Pai Foundation v. State of Karnataka, reported in 2002(8) SCC 481 . In that case yardstick for taking decision has been laid down that in order to decide minority in a particular region the concerned State has to be treated as unit. This Court in view of the aforesaid pronouncement of the Supreme Court has to accept the law laid down therein. In that case yardstick for taking decision has been laid down that in order to decide minority in a particular region the concerned State has to be treated as unit. This Court in view of the aforesaid pronouncement of the Supreme Court has to accept the law laid down therein. The petitioners have annexed documents of public nature which include 1991 Census Report wherefrom it is revealed that in every lakh of people in West Bengal 126 can be found to be Nepali speaking who are concentrated mostly in Darjeeling Hill areas. Darjeeling is part of the State of West Bengal and Nepali speaking people residing therein are obviously people of West Bengal. In West Bengal there are other people who are having their languages different from Bengali." Paragraph:-34 "Now the question comes just because they are linguistic minority whether all the schools situate in their area the linguistic minority status can be granted automatically or not. In order to get out of the applicability of the West Bengal School Service Commission Act under section 15 clauses (a) and (b) following pre-conditions are to be fulfilled. The school/schools must be established and administered by a linguistic minority or a school/schools under any trust is (are) established and administered by linguistic minority." Paragraph:-41 "We can reasonably presume that there might be good number of schools established and run by the linguistic minority. But in order to get coverage under Article 30 of the Constitution of India aiming at to wriggle out of the applicability of the said Act there must be conclusive evidence. At the same time we add that all the schools in the Darjeeling cannot claim linguistic minority status as a matter of course or rule. Declaration of minority institution depends upon constitution of the school, founder and management authorities and lastly class of students, nor the population of the area concerned." 28. It is noteworthy that prior to the enactment of 2004 Act, the West Bengal Board of Secondary Act, 1963, West Bengal Minorities Act, 1992, the West Bengal Minorities' Commission Act, 1996 (for short the 1996 Act') were occupying the field. The 1996 Act empowered the Minorities' Commission Act in the State to function under section 4 of the said Act. It is noteworthy that prior to the enactment of 2004 Act, the West Bengal Board of Secondary Act, 1963, West Bengal Minorities Act, 1992, the West Bengal Minorities' Commission Act, 1996 (for short the 1996 Act') were occupying the field. The 1996 Act empowered the Minorities' Commission Act in the State to function under section 4 of the said Act. Therefore, in view of the law laid down in T.M. Pai Foundation v. State of Kannataka and keeping mind that the 2004 Act had come into force with its amendment, it was held in Kiran Subbha (supra) that in order to decide the minority status in a particular region the concerned State has to be taken as a unit. Thus, in view of the issue decided in the case of Kiran Subbha (supra) this Court held in paragraph 47 "after this Act of 2004 came into force, one has to apply to the competent authority under Section 10 of the said Act for obtaining no objection for establishing such institution. In our view the Commission under Act of 2004 can act as an appellate authority if such application is rejected." In this regard it is appropriate to find out the definition of the "authority" having the statutory duty to declare minority status. The National Commission can be found in "Explanation" of section 12B of 2004 Act which is as under:- "For the purposes of this section and section 12C, "authority" means any authority or officer or commission which is established under any law for the time being in force or under any order of the appropriate Government, for the purpose of granting a certificate or minority status to an educational institution." Till 7th September, 2007, i.e. the date of delivery of judgment in Kiran Subbha (supra), this Court did not find any existence of "any appropriate authority" appointed by the Government to deal with the application under Chapter-III of 2004 Act with regard to the declaration of status of an educational institution established and run by linguistic minority. 29. With regard to the judgment in Kiran Subbha (supra) Mr. Bandopadhyay submitted that it was obiter dicta since discussion held therein and answer given thereto were beyond the issues to be decided in that case. Dictionary meaning of "obiter" is "by the way; in passing; incidentally; collaterally. 29. With regard to the judgment in Kiran Subbha (supra) Mr. Bandopadhyay submitted that it was obiter dicta since discussion held therein and answer given thereto were beyond the issues to be decided in that case. Dictionary meaning of "obiter" is "by the way; in passing; incidentally; collaterally. It is an expression of opinion formed by a Judge on a question immaterial to the ratio decidendi and unnecessary for the decision of the particular case. It is in no way binding on any Court but may receive attention as being an opinion of high authority." In the case of Director of Settlements, A.P. and others v. M.R. Appa Rao & another the term "obiter dictum" is defined as distinguished from a ratio decidendi which is "an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight." 30. It appears from facts in the Kirran Subbha (supra) that the writ petitioners were successful in the selection test conducted by the concerned Regional School Service Commission. Those candidates were empanelled for being eligible to be recommended for appointment in the respective posts of Assistant Teachers in the respective schools within the territory of Gorkha Hill Council in Darjeeling. The core issue was whether the provisions of the West Bengal School Service Commission Act would be applicable by virtue of section 15 of the said Act to the schools established and run by Nepali speaking people or not. This Court delivered the judgment in Kirran Subbha (supra) on 7th September, 2007 when the 2004 Act with its amendments was already in force. The Division Bench of this Court in that case while examining the provisions held as follows:- Paragraph:-43 "It is clear that the Commission has not been empowered to decide or declare as to whether a particular institution is established and administered by linguistic minority. The function of the said Commission was quite different from the issues involved herein. It could look into complaint regarding deprivation of established right of minority when term is again unclear to include linguistic. The function of the said Commission was quite different from the issues involved herein. It could look into complaint regarding deprivation of established right of minority when term is again unclear to include linguistic. When as in this case, such right is yet to be decided, the Commissioner cannot do anything else". Paragraph:-44 "It is contended that in section 10 read with section 11(f) of 2004 Act there is complete mechanism for granting declaration of minority status. Such contention in our view is not appropriate in this case. Section 10 enables any person to apply to the competent authority for the grant of no objection certificate to establish a minority educational institution. This provision is applicable at the initial stage. This competent authority, it appears to us, can grant no objection certificate or refuse it but it has no power to declare a particular existing institution as minority one. The Commission is the appellate authority against the above order refusing to grant no objection certificate. The functions and powers of the Commission constituted under the Act of 2004 has been provided in section 11 of the said Act. It appears to us, that the Commission, in the matter of deciding question of granting no objection certificate acts as an appellate authority and this would be clear from section 12A and section 12B of the 2004 Act, it is clear from section 12B of the 2004 Act that the Commission cannot pass any order for declaration at the first instance. This initial function has to be performed by the competent authority established by the Central Government or any State Government. In the process of doing so this authority has to reach fact finding about minority." This Court further held in Paragraph:-47 "Whether a particular institution is established or administered by the linguistic minority or not could be examined and decided by the State Government before the said Act of 2004 came into force. After this Act of 2004 came into force, one has to apply to competent authority under Section 10 of the said Act for obtaining no objection for establishing such institution. After this Act of 2004 came into force, one has to apply to competent authority under Section 10 of the said Act for obtaining no objection for establishing such institution. In our view, the Commission under Act of 2004 can act as an appellate authority, if such application is rejected." Ultimately the Division Bench decided the case giving the following observations in paragraphs 49, 49 and 50, the relevant portions of which are as follows:- Paragraph:- 48 " We are of further view that a person has to apply to the Government for examining as to whether the institution has been established or administered before the said Act came into force as being a linguistic or religious minority and on receipt of the same Government shall make enquiry and examine that claim. In order to establish a new institution one has to make an application to the competent authority for obtaining no objection certificate. In the event no objection certificate is obtained or deemed to have been obtained under section 10 of Act 2004 then the Government shall recognise and declare that such an institution is minority institution. Once it is done then it is the power of the Board to approve the special constitution for this minority institution with regard to the management. All these procedures are to be observed, anything short of this, the Court cannot declare automatically that a particular institution has been established or administered by minority." Paragraph:- 49"Therefore, all the persons in this matter who are claiming to have established and administered their institutions as being linguistic minority may take steps for applying to the Government as all these institutions are established prior to commencement of the Act, 2004." Paragraph:-50"At present, we do not find any appropriate authority has been appointed by the Government for this purpose. Therefore, we direct Secretary of Secondary School Education to constitute a team consisting of an official not below the rank of Deputy Director of Secondary Education as the head of this team and the concerned D.I. and one officer as he may think fit, to examine the claim of the writ petitioners and other added respondents. The Committee shall be constituted within one month from the date of communication of this Order. The Committee shall be constituted within one month from the date of communication of this Order. Upon making enquiry if it is found that the institutions are established and run by the linguistic minority then such status must be declared and recognized by the Government with framing Rules for composition, powers, functions of the Managing Committee and the Board shall, on application being made, approve the special constitution regarding formation of Managing Committee. This enquiry and consequential action must be completed within four months from the date of making application." In paragraph 52 of the judgment it was held that "we make it clear that this order, however, will not be treated as precedent…." The question arises why it was held that the order would not be treated as a precedent. The reason in coming to such conclusion is obvious. Because it would go away, the moment the institution would be recognized with minority status or otherwise by the Government by forming committee for consideration of the applications claiming minority status. It may be noted that subsequently in the said paragraph 52 it was held as follows:- "In consequence thereof the respondents/writ petitioners in the appeal of Darjeeling Gorkha Hill Council who are already recommended by the School Service Commission for Darjeeling region are entitled to be appointed by the respective schools to fill up the vacancy. The challenge against the order of the learned Trial Judge is based on the above Constitution. As this challenge fails the appeal is dismissed......................................" The Division Bench in its order had directed the Commission as well as the institution and the concerned Department to implement the order of the learned trial Judge by making it clear that this would not be treated as precedent, the moment the particular institutions are recognized as linguistic minority institution by the Government. Keeping this interpretation in mind the argument advanced by the Mr. Chaturdebi that the judgment in the case of Kiran Subbha (supra) cannot be used as a binding precedent is not acceptable. 31. Mr. Bandopadhyay relying upon the judgment in Special Appeal Defective No. 552 of 2015 of Allahabad High Court (supra) argued that the power conferred upon the National Commission in the matter of declaration of minority status under Section 11(f) is concurrent. 31. Mr. Bandopadhyay relying upon the judgment in Special Appeal Defective No. 552 of 2015 of Allahabad High Court (supra) argued that the power conferred upon the National Commission in the matter of declaration of minority status under Section 11(f) is concurrent. Since the statute was declared by the National Commission, the State Body cannot challenge said order and the Commission had also rejected the objection of the North Bengal University. Therefore the State Body now cannot challenge the minority status of Women's College. It is evident that along with the letter dated June 27, 2007 (supra) though the appellant society enclosed as many as eight documents in support of its case before the National Commission, however, it withheld the following documents (a) letter dated November 10, 1997 addressed to the Minister of Higher Education, (b) letter dated December 16, 1997 addressed to the Inspector the North Bengal University (c) report dated January 10, 1998 of the Inspector, (d) approval letter dated July 21, 1998 of the Government. The respondents challenged said order declaring the status as a nullity since the National Commission 'being appellate authority' had no jurisdiction to pass said order at the first instance. Such contention was accepted by the Learned Trial Judge in disposing of the writ petitions by the common judgment under challenge. 32. The provisions under Section 10 of Chapter III of the 2004 Act do not leave any doubt that powers have been vested on the "competent authority" under Section 2(ca) of the Act for the grant of no objection certificate whenever or wherever it will apply, and the persons belonging to a minority community are at liberty to submit application before such "competent authority" to obtain no objection certificate, and the competent authority of the State in its turn "shall.........decide every application" (emphasis supplied) and shall either grant or reject such application. Sub-Section (4) of Section 10 provides that grant of no objection certificate gives entitlement to the person or persons of the minority community to commence and proceed with the establishment and administration of the minority educational institution. Sub-Section (4) of Section 10 provides that grant of no objection certificate gives entitlement to the person or persons of the minority community to commence and proceed with the establishment and administration of the minority educational institution. Thus Section 10 of the Act with its Sub-Sections (1) (2) (3) and (4) provides a complete procedure to obtain no objection certificate from the competent authority in the State in respect of establishment of a Minority Educational Institution and the National Commission has no role to play in respect of grant of no objection certificate. 33. Now section 11(f) is introduced by the amendment Act of 2006, empowers the Commission "to decide all questions relating to the status of any institution as a Minority Educational Institution and" to "declare its status as such". Sections 12A, and 12B by the same amendment were introduced vesting appellate power in the circumstances and enumerated therein. Similarly, sections 12, 12C, 12D and 12E were introduced in furtherance of the statutory duties cast under section 11 of the Act. In order to take decision as the supreme statutory body "notwithstanding anything contained in any other law for the time being in force" the State authority has no role to play therein. The question, if the National Commission, being the highest body declared the status of the college as a Minority Educational Institution then can be the North Bengal University and the State question the order of the Commission declaring minority status of the college, which was affirmed by the National Commission by order dated 5th November, 2009 which was passed after considering the objection of North Bengal University and after giving an opportunity of hearing to the State of West Bengal. 34. The then members of the Governing body forming the Society are from the Christian Community guided by their own Memorandum of Association. But from Clause 3(b) of their memorandum I find that though their object in establishing educational institutions was primarily for Catholics but it was kept open for others irrespective of religion, race, caste, community or social status. So establishing or setting out any educational institution by the society of the appellant ipso facto does not constitute as an educational institution for minority community unless it is administered by them and it has got its minority status declared by the competent authority. 35. So establishing or setting out any educational institution by the society of the appellant ipso facto does not constitute as an educational institution for minority community unless it is administered by them and it has got its minority status declared by the competent authority. 35. However, examining the documents till the impugned declaration I find that since inception responding to the public demand the intention of the appellant was to establish a women's college at Kalimpong was with secular concept. For the purpose they had also acceded to the condition of the Government viz. "The college will be run in the manner prescribed in the statute of the affiliated university" and "no special Constitution of the Governing Body shall be allowed". I refer to the letter dated 16.12.1997 (supra) and the inspection report dated 10.01.1998 of the Inspector, North Bengal University (supra) which indicates the aim was to establish a college without claiming any minority status. 36. Be it noted that Mr. Bandopadhyay had posed a query that even if option to set up minority educational institution was not exercised earlier by any ex member of the society, can it prevent the members to exercise option in future to set up a minority educational institution of their choice? Appreciating the submission of Mr. Kar on the point I do also confirm by answering "no and never" as there cannot be any rule of estoppel, waiver or acquiescence in respect of the right guaranteed under Article 30(1) of the Constitution of India. Therefore, the authorities in Ahmedabad St. Xavier's College (supra) or Nar Singh Pal (supra) on the point relied on by Mr. Bandopadhyay need not be discussed since those are accepted proposition of law for all time to come. 37. I found from the judgment in Kiran Subbha (supra) delivered on September 7, 2007 that till then there was no appropriate authority appointed by the Government of West Bengal to grant no objection certificate though the 2004 Act come into force w.e.f. January 01, 2005 which underwent amendments in 2006. It is obvious that pursuant to the time bound direction of this Court given in the judgment of Kiran Subbah (supra) the State Government had set up its machinery in terms of 2004 Act. We can now read and interpret the legislative intention in enacting such uniformed Act for the whole of India. It is obvious that pursuant to the time bound direction of this Court given in the judgment of Kiran Subbah (supra) the State Government had set up its machinery in terms of 2004 Act. We can now read and interpret the legislative intention in enacting such uniformed Act for the whole of India. The statute was brought to screen only genuine minority institution to run with minority status and to prevent fake institutions. In furtherance of the goal wholesome provisions with some safeguards and procedure within Chapter III, and, in Chapter IV were laid down to deal with the matters by the respective authorities harmoniously whenever or wherever it will apply without having any scope of overlapping to the arena of the other. 38. It is evident that the impugned college was set up as secular one on being approved by the State Government on July 21, 1998 i.e. long before the 2004 Act came into force. So after coming into force of the 2004 Act with its amended provisions w.e.f. January 23, 2006 two fold questions arose viz., who is the competent authority to be approached to declare minority status of an educational institution at the first instance, and whether the National Commission can also declare such status under Section 11(f) independently (emphasis supplied) like the first instance. 39. On query, Mr. Bandopadhyay submitted, if there was no competent authority appointed by the State at that relevant time to whom the society would apply. Answer is simple. Government of West Bengal with its different wings including higher education department were very much there also in the year of 2007. That apart the subject college being within the State of West Bengal, West Bengal Act 16 of 1996 namely The West Bengal Minorities' Commission Act, 1996, could have been approached. Answer is simple. Government of West Bengal with its different wings including higher education department were very much there also in the year of 2007. That apart the subject college being within the State of West Bengal, West Bengal Act 16 of 1996 namely The West Bengal Minorities' Commission Act, 1996, could have been approached. Where the Minority Commission, on being approached, under Section 4(e) of said Act 1996, could "recommend to the State Government to accord minority status to religious, linguistic and ethnic groups, provided such groups do not enjoy any constitutional or statutory benefits or status." Section 2(c) of the said Act defines, "Minority for the purpose of this Act means a community based on religion such as Muslim, Christian, Sikh, Buddhist or Zaroastrian (Parsee)......" In the case in hand, there is no evidence that the appellant society ever approached the Minorities' Commission to obtain recommendation for minority status under Section 4(e) of the said Act. The appellant society could not produce any scrap of paper showing communication to the State Government either within existing law in the State, or, even order under Section 10 of the New Act, or, refusal thereby for any reason whatsoever. Had there been any such communication to the Minorities' Commission under Act 16 of 1996 Act, or subsequently to the Government of West Bengal under the 2004 Act to respond on either way in terms of the Chapter III of the Act 2004 and there was refusal, the complexion of the impugned status certificate would have been otherwise. 40. Instead, on approach of the appellant society the National Commission on October 23, 2007 passed an ex parte order declaring minority status of the impugned college and issued certificate on October 25, 2007 with the language, quoted hereinbefore. Either within the order dated October 23, 2007 or October 25, 2007 I do not find that those orders were passed by the Commission in exercise of the power conferred under Section 11(f) or setting aside any order of refusal if ever was made by any authority in the state as it has been deserved within Section 12B of the Act. 41. 41. I find that the National Commission under Section 12B invokes its appellate jurisdiction to consider the grievance of the person, be he/she an individual or be it a community, if an "authority" established by the Central Government, or, any State Government, as the case may be, rejects his/their application "for the grant of status". So in common parlance there can be no second logic but to accept without ambiguity that the authority, so established, either by Central Government or State Government in a state enjoys the jurisdiction to allow as well as to reject the application for the grant of status. Because if such an authority in the State enjoys the jurisdiction to reject the application for grant of status, then it is obvious that said authority in the state certainly also can allow the application bearing the same prayer in appropriate case. If minority status is granted by such "authority", thereafter the National Commission, after giving opportunity of being heard to said Minority Educational Institution, may invoke Section 12C in the given circumstances for its cancellation functioning within unfettered power under Section 11(f) of the Act, and if such application for the grant of status is rejected the National Commission on being approached invokes its jurisdiction under Section 12B read with Section 11(f) of the Act as an appellate body, where the Commission has been vested with the power to decide all questions relating to the status of any such institution "as such". 42. For the purposes of Sections 12B and 12C the "authority" has been defined in the "Explanation" of Section 12B where it means any authority or Commission established under any law or by the appropriate Government granting certificate of minority status to an educational institution. 43. It is evident that before issuing the impugned certificate on October 25, 2007 by National Commission declaring minority status in question one ex parte order was recorded on October 23, 2007 while the judgment of Kiran Subbah with the directions upon the State was already in operation apart from pre-existing Act 16 of 1996 (supra). 43. It is evident that before issuing the impugned certificate on October 25, 2007 by National Commission declaring minority status in question one ex parte order was recorded on October 23, 2007 while the judgment of Kiran Subbah with the directions upon the State was already in operation apart from pre-existing Act 16 of 1996 (supra). The Commission however observed in the said ex parte order "The State Government has not notified any authority to grant minority status certificate to a minority educational institution." Though, adjudging propriety of the order of the Commission as a whole is in issue, but the above order of the Commission at least corroborates and admits about existence of statutory authority in the state under the Act to declare minority status to an educational institution in the State at the first instance. Otherwise it would not have been recorded by the National Commission in the order dated 23.10.2007, "The State Government has not notified any authority to grant minority status certificate ........" Therefore submission of Mr. Chatuerbedi, that the competent authority in the state can only consider application seeking no objection certificate for establishing minority educational institution, and, cannot declare minority status, has no merit. Even in the case of Governing Body of P.A.E.M. College & Another v. State of Jharkhand & Ors. (supra) the Supreme Court was moved challenging the order of the Government of Jharkhand holding that the College being not minority institution was denied protection under Article 30(1) of the Constitution. In that case the Supreme Court refrained from examining correctness of said order of the Government since it would be appropriate if the college be given opportunity to approach commission for declaration of its status, since the Supreme Court held therein in paragraph 6, "The provision contained in Section 11(f) of 2004 Act, and Section 12 B of the Amendment Act are thus wholesome provisions for deciding all questions relating to the status as minority educational institution and for declaration as such". So the decision is not applicable to accept argument either of Mr. Bandopadhyay or of Mr. Chaturbedi rather it supports the contention the respondents. Because I find from the case of Jharkhand (supra) that the Government of Jharkhand was first moved by the educational institution for grant of minority status for its protection under Article 30(1) of the Constitution, which was denied by the State Government. Bandopadhyay or of Mr. Chaturbedi rather it supports the contention the respondents. Because I find from the case of Jharkhand (supra) that the Government of Jharkhand was first moved by the educational institution for grant of minority status for its protection under Article 30(1) of the Constitution, which was denied by the State Government. Consequently the Supreme Court without examining correctness of said order of rejection has shown the path laid down under Sections 11(f) and 12B of the Act, which are the "wholesome provisions" to decide the issue. The Supreme Court in said judgment nowhere laid down the law that the National Commission can function under Section 11(f) independently like the authority of the first instance in the State. 44. Therefore, if the above provisions are now constructed together harmoniously then one can come out with the literal interpretation without ambiguity that the power to grant or refusal of minority status by the authority established by State Government is inbuilt, (emphasis supplied) though within Chapter III of the Act itself I find a vacuum for not providing speaking and self-contained provision therein, where incorporation of a few words or sentences pertaining to declaration of status by the authority in the state could prevent this type of traversive judicial proceedings. 45. Why I do like to use the expression "vacuum" the same may be clarified from further discussion. Let me highlight once Section 2(aa) (ii) and (ca) of the Act to get the meaning of the "authority" in the State and "State Government" in terms of declaration of status of educational institution. Section 2 (ca) is set out:-"Competent authority" means the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any education institution of their choice by the minorities. Section 2(aa)(ii) is also set out:- "appropriate Government" means, (ii) 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; 46. Section 2(aa)(ii) is also set out:- "appropriate Government" means, (ii) 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; 46. Therefore, it is evident that in the State virtually there is the body termed as the "authority" to act under Section 10 of the Chapter III granting no objection certificate and also to consider the application either to grant or refuse minority status of an educational institution, monitored by Section 12B or 12C of Chapter IV by the National Commission as and when the circumstance will so arise. 47. Issuance of no objection certificate under Section 10 of the Act, on being approached, has been well founded in Chapter III. So when any educational institution obtains certificate of no objection in the matter of establishing a minority educational institution thereafter to get its minority status through the authority in the State may be a mere formality. That is why I do incline to put the expression that the power of the authority established by the State either to allow or reject application for grant or minority status apart from dealing with "no objection certificate" is inbuilt, and the legislature on its own wisdom may take care to fill up the vacuum so that there may not be any chaotic state of affair over exercising power between the authority in the State and the National Commission, and, so that the applicants from state also may not get confused as to where to go at the first instance to obtain declaration of minority status either on the basis of language or religion, be it relating to pre-existing educational institutions before coming of the Act 2 of 2004 or the institutions coming post Act. 48. By interpreting Sections 12B, its Explanation, 12C, 2(ca), (aa)(ii) and Section 10 of the Act, 2004 we cannot have now any second thought but to hold that the "authority" in the State is the competent authority at the first instance which is to be approached to seek minority status followed by the step of obtaining "no objection certificate". 49. 48. By interpreting Sections 12B, its Explanation, 12C, 2(ca), (aa)(ii) and Section 10 of the Act, 2004 we cannot have now any second thought but to hold that the "authority" in the State is the competent authority at the first instance which is to be approached to seek minority status followed by the step of obtaining "no objection certificate". 49. Section 11(f) of Chapter IV of the Act has empowered the commission to "decide all questions relating to the status of any institution........" So again in common parlance it can be safely held that the need to "decide" arises only when there is a dispute. In other way, had there been no dispute there is no need to "decide" at the National Commission Level. Section 11(f) does not lay down any procedure like Section 10 of the Act in respect of making or dealing with application for declaration of "its status as such". On the contrary, I hold, Section 11(f) has vested all power only to the National Commission to deal with and decide all questions relating to status of the aggrieved person or institution as an appellate authority under Section 12B of the Act when it would be refused by the authority as defined in the Act. Some words from within Section 11(f) in furtherance are to be read and taken care of with due attention to appreciate the intention of the legislature. The words "relating to" obviously are indicative to something which is already in existence. Next question then comes what is in existence? Answer is certainly be the "status", attached to the educational institution. Further question then comes, what are to be decided? Answer is, all questions/disputes pertaining to status of said minority educational institution which is pre-existing and then to declare "as such". So had there been no status already declared or refused by some authority relating to the educational institution already existing, then exercising provision of Section 11(f) would be meaningless. Thus I find no ambiguity to hold that the power vested under Section 11(f) is subservient to Section 12B and to other provision wherever the minority status is in issue before the National Commission and the same is not an independent provision to deal with an application at the first instance to provide grant of minority status as claimed in the case in hand. Rather I observe that the power under Section 11(f) of the Act, to be exercised by the National Commission, can be compared with the power of the appellate authority as exercised under Order 41, Rule 24 of the Code of Civil Procedure where the appellate authority sometimes determines the suit finally by resettling the issues where evidence upon record is sufficient and the Court of first instance either omitted or rejected the relief, which ought to have been allowed. 50. Otherwise, if the National Commission would exercise all powers to decide relating to dispute on minority status under Section 11(f) of the Act independently then there would be no necessity to create Section 12B vesting appellate power to the Commission in the event of refusal of application for granting status, or to create Section 12C separately empowering the National Commission to cancel the minority status of an institution under the given situations. Rather, if Section 11(f) of the Act is not subservient to Section 12B, as observed by Allahabad High Court in the judgment of special appeal (supra), then after passing an order by the National Commission once in the alleged independent capacity rejecting minority status under Section 11(f), can the Commission sit again on appeal under Section 12B, on being approached by the aggrieved person or group of persons? Obviously it is not the law. An authority cannot sit on appeal against its own order. I can now put an end to the discussion on the score holding that Section 11(f) of the Act is not exercisable independently for any educational institution who has no pre-existing minority status obtained from the authority of first instance or unless the authority, having competence to declare, rejected or refused the application for grant of status. Therefore the interpretation of law is not permitting me to accept the proposition laid down over Section 11(f) in the special leave Defective No. 552 of 2015 (supra), where it was held, "This does not make Section 11(f) or the functions of the Commission thereunder subservient to Section 12A or Section 12B. Hence, the correct way of interpreting the provisions is that the power of the Commission under Section 11(f) is not confined to the discharge of its appellate jurisdiction under Section 12A or Section 12 B of the Act. Section 11(f) is an independent function." 51. Hence, the correct way of interpreting the provisions is that the power of the Commission under Section 11(f) is not confined to the discharge of its appellate jurisdiction under Section 12A or Section 12 B of the Act. Section 11(f) is an independent function." 51. It is pertinent to note that the decision relating to status under Section 11(f) can have no nexus with Section 12A, since Section 12A can be invoked only in the event of refusal of grant of "no objection certificate". If we look back to each of the provisions of Section 11(a) to (e), (g), (h), 12(1), 12A, 12B, 12C, 12D and 12E of Chapter IV of the Act and also take the statement of objects and reasons for incorporation in the Act of all those provisions by amendment into consideration, then the legislative intention be correctly read that all such provisions including Section 11(f) have been incorporated in the Act by giving rather widest scope of functioning with the power of superintendence as an appellate authority keeping it subservient also to the provision of appeal without curtailing of course the jurisdiction which have been vested with the State to deal with the matters at the first instance, since the concerned educational institution obviously is a State subject. Therefore the concerned State is allowed to act freely in the matter within the given provisions at the first instance, and unless any applicant/institution is deprived of by the authority of first instance in granting minority status as it was noticed in the case of governing body of P.A.E.M. College v. State of Jharkhand (supra), I find that Section 11(f) does not give any scope to deal with any such matter as a first instance authority by overlapping the State authority to declare minority status. 52. At this juncture, I do incline to refer the clause Nos. 3, 5, 6, 7, 9(b) (e) and (g) of the application dated June 27, 2007 submitted by the appellant before National Commission for issuing minority status certificate by filing up the form, from where it is also clear that State Government was never moved at any level and therefore question of refusal or grant of either "No Objection Certificate" or "Certificate declaring minority status" by the State authority did not arise. In this context I must say that incorporation of those clauses in the application form, to be submitted before National Commission seeking minority status, must be read and considered in the context of the subject matter and scheme of the Act legislated consistently with the aims and objects of such Act. When the Act 2004 with its amendments have been enforced, and since thereafter while the judgment of Kiran Subbah (supra) with necessary directions upon State Government has occupied the field, the appellant society without even adopting the provision under Section 10 of the Act straightway moved the Commission that too withholding a few documents viz., their own letter dated November 10, 1997 (supra), letter dated December 16, 1997 (supra), Inspection report of the University of North Bengal (supra), letter dated July 21, 1998 of the State Government (supra). 53. Thus by harmonious reading of the provisions discussed above and keeping the judgment of this Court in the case of Kiran Subbah (supra) side by side I hold that this Court has already laid the path in its paragraph 48 (supra) holding, "we are of the view that a person has to apply to the Government for examining as to whether the institution has been established or administered before the said Act came into force as being linguistic or religious minority and on receipt of the same Government shall make enquiry and examine the claim......" So I find that Section 11(f) of the Act cannot exist in isolation from other provisions of Chapter IV. It stands subservient to Section 12B, as well as to other provision under Chapter IV wherever the minority status is in dispute before the National Commission, or any nature of intervention of the National Commission is required which is not sorted out either by the State authority or, State authority has no jurisdiction to deal with the same. 54. The National Commission at the centre and the competent authority at the state, both being the creature of the statute, either of it cannot enter into the arena of the other. 54. The National Commission at the centre and the competent authority at the state, both being the creature of the statute, either of it cannot enter into the arena of the other. In absence of specific provision in the statute like Article 32 of the Constitution enjoying concurrent jurisdiction by the Supreme Court throughout the country like the High Court's exercising its own jurisdiction within its own State under Article 226 of the Constitution, the appellant's claim of having minority status declared by the National Commission without approaching the State before hand, is held to be far away of any legal sanction due to lack of jurisdiction. This is the known maxim viz., 'anything cannot be built up upon nothing'. Therefore, the certificate dated October 25, 2007 declaring minority status while is found as a document issued without jurisdiction, said certificate has rightly been held as void by learned Trial Judge within writ jurisdiction which is well aided with Section 12F of the Act 2004, since the impugned certificate has been successfully challenged in another independent writ petition, being W.P. 5002(W) of 2010. Therefore, I find that what ought to have been done by the authority of the first instance in the State on being approached, it was done by the National Commission as the superior and appellate body, which eventually gives birth to a void order and consequently the order of the National Commission dated November 11, 2009 confirming said void order dated 23rd October or 25th October, 2007 granting minority status certificate cannot and thereby did not supply any oxygen to survive conferring any right upon the appellant/society to claim minority status of the Women's College on the basis of the same. 55. The judgment of the Division Bench of Allahabad High Court in special appeal Defective No. 552 of 2015 (supra) on which the appellant relied upon, is not followed in this case and cannot be followed since I could not gather therefrom the fact of that case, what were the documents relied on like the case in hand or what were the arguments made at the Bar with the authorities, and taking concurrence of Lordship S. Pal J. I found the decision of Allahabad High Court (supra) as per incurium. Furthermore, this Court in the case of Kiran Subbha has laid down the law that after the Act, 2004 came into force all the persons may take steps before the authority of the first instance in respect of the institutions established prior to commencement of the Act, which is not an obiter dicta but to be followed by this co-ordinate Bench as well, only with a clear rider as a result of above findings, that the authority established in the state is also empowered either to grant or refuse the application seeking declaration of minority status, and, said power of the authority of the first instance in state is in-built, on which indication also is available in paragraph 48 of the case of Kiran Subbah quoted above within foregoing paragraph 10 of my judgment. 56. Therefore, in the absence of any dispute or deprivation of status or without undergoing through process of Chapter III of the Act entertaining of application of the appellant straightway by the National Commission in declaring minority status of the Women's College under Section 2(g) of the Act, which is claimed to have been declared under Section 11(f) of the Act, has been rightly held by learned Trial Judge as without jurisdiction, and thereby a nullity, and therefore, any such act having been done by the National Commission encroaching upon the authority of the State and/or overlapping the jurisdiction of first instance at the State, being without legal sanction, is void since its birth. 57. Because if the statute does not permit anything to be done or, in other way, if the statute provides a thing to be done in a particular manner then any violation of such statutory provision is an act without jurisdiction, provided there is any saving clause within the statute. As it appears this is a mere inference of the appellant that the impugned certificate was issued by the Commission under Section 11(f) of the Act. But as I have already discussed above, the Commission during grant of the certificate on 25.10.2007 or even during recording ex parte order on 23.10.2007 did not mention that the Commission allowed the prayer of the appellant in exercise of power under Section 11(f) of the Act. But as I have already discussed above, the Commission during grant of the certificate on 25.10.2007 or even during recording ex parte order on 23.10.2007 did not mention that the Commission allowed the prayer of the appellant in exercise of power under Section 11(f) of the Act. Therefore, within the statute while there is no provision vested with the National Commission to exercise the power at the first instance, except under Section 11(f) being subservient to Section 12B of the Act or wherever the minority status is in dispute before the Commission, the impugned certificate dated 25.10.2007 is void, as rightly held by the learned Trial Judge. Therefore wherever and whenever such a void document is/will be attempted to be utilized it shall be prevented from allowing any benefit therefrom. 58. In view of above discussions I do not to accept the argument of Mr. Bandopadhyay that the case of Kiran Subbha is obiter dicta, or the State Body cannot challenge or question the order as it was passed by its superior body, or of Mr. Chaturbedi that the judgment in case of Kiran Subbah should not be utilized as precedent. 59. On the precedent doctrine this is the settled maxim that a judgment of the Court is not to be read as a statute, because judicial utterances are made in the facts of a particular case. Therefore a judgment may not be followed in a given case if some distinguishing features are noticed which in the case is not found really. However, in the case in hand there being statutory violation by the highest body on the subject, despite of existence of Act 16 of 1996 prevalent, and introduction of Act 2004, the said act having been declared void by learned Trial Judge also pursuant to the prayer of separate W.P. 5002(W) of 2010, though by the common judgment under challenge the judgments in the case of M. Meenakhshi and Ors. v. Metadin Agarwal (supra) and in the case of State of Punjab and Ors. v. Gurudev Singh (supra) are not applicable. 60. Thus in view of above discussions, observations and taking also the ratio of the decisions cited at the Bar, I concur with the views of my brother Judge S. Pal J. No order as to costs. Appeal dismissed.