IN THE HIGH COURT OF JUDICATURE AT MADRAS (APPELLATE JURISDICTION) MONDAY, THE SEVENTEENTH DAY OF DECEMBER TWO THOUSAND AND SEVEN PRESENT: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.A.NOS.929 AND 933 OF 2006 Bar Council of India Represented by its Secretary, No.21, Rouse Avenue, Institutional area, New Delhi-110 002. .. Appellant in both the Writ Appeals vs. 1. Saveetha Institute of Medical and Technical Sciences, Deemed University, Represented by its Registrar, 162, Poonamallee High Road, Chennai-600 077. 2. The Tamil Nadu Dr.Ambedkar Law University, rep. by the Registrar, No.5, Greenways Road, Chennai-600 028. 3. Madras High Court Advocates Association, Rep. by its Secretary G.Mohanakrishnan, High Court Buildings, Chennai-600 104. (Respondents 2 and 3 impleaded as party-respondents -vide Order of Court dated 20.9.2006 made in M.P.Nos.2 and 3 of 2006 in W.A.No.929 of 2006 M.P.Nos.2 to 4 of 2006 in W.A.No.933 of 2006) 4. The University Grants Commission, rep. by its Secretary, Bahadurshah Zafar Marg, New Delhi-110 001. (Respondent No.4 impleaded as party-respondent- Vide Order of Court, dated 18.7.2007) .. Respondents in W.A.No.929 of 2006 https://hcservices.ecourts.gov.in/hcservices/ 1. Shanmuga Arts, Science, Technology and Research Academy (SASTRA), Deemed to be a University, No.8, Dr.Subbarayan Nagar Main Road, Kodambakkam, Chennai-600 024 Represented by its Registrar R.Kandasami 2. The Tamil Nadu Dr.Ambedkar Law University, Rep. by the Registrar, No.5, Greenways Road, Chennai-600 028. 3. The Students Federation of India (S F I), Rep. by its State Secretary Selva. 4. Madras High Court Advocates' Association, rep. by its Secretary G.Mohanakrishnan, High Court Buildings, Chennai-600 104. (Respondents 2 to 4 impleaded as party respondents-vide Order of Court dated 20.9.2006 made in M.P.Nos.2 and 3 of 2006 in W.A.No.929 of 2006 M.P.Nos.2 to 4 of 2006 in W.A.No.923 of 2006). 5. The University Grants Commission, rep. by its Secretary, Bahadurshah Zafar Marg, New Delhi-110 001. (Respondent 5 impleaded as party respondent -Vide Order of Court dated 18.7.2007 made in M.P.No.1 of 2007 in W.A.No.933 of 2006) .. Respondents in W.A.No.933 of 2006 Writ Appeal No.929 of 2006 filed against the order of this Court dated 20.4.2006 in W.P.No.10231 of 2006 AND Writ Appeal No.933 of 2006 filed against the order of this Court dated 21.3.2006 in W.P.No.24928 of 2005. W.P.NOS.12231/2006 AND 24928/2005: Petitions presented under article 226 of the Constitution of India to issue writ of certiorarified mandamus calling for the records (i) of the respondent relating to its order in BCI:D:197:2006 (LE/Afflin) dated 24.2.2006 and quash the same and directing the respondent to accept and consider the application of the petitioner dated 14.12.2005 for starting a Law College to impart five year Law Course is B.A.LLB (Hons) from the academic year 2006-07 with an intake of 320 students without reference to the objection of the State Government (WP.No.12231/2006); and https://hcservices.ecourts.gov.in/hcservices/ (ii) relating to the order of the respondent in BCI D.1044/2005 (LE.Mtg)(2 TN-N) dated 1.7.2005 and quash the same and direct the respondent to grant approval of the degree BA LLB and LLB of the petitioner under Shanmugha Arts Science Technology and Research Academy (SASTRA) Thanjavur, Tamil Nadu (WP.No.24928/2005), respectively. ORDER : The Writ Appeals coming on for hearing on Friday the 24th day of August, 2007 upon perusing the grounds of appeals, the orderof th Honourable Mr.Justice D.Murugesan, dated 20.4.2006 and 21.3.2006, respecting and made in the exercise of the Special Original Jurisdiction of the High Court in Writ Petition Nos.10231/2006 and 24928/2005, respectively and all other papers material to these case, and upon hearing the arguments of - For appellant in both the Writ Appeals: Mr.K.Venkatakrishnan For respondent-1 in W.A.No.933 of 2006: Mr.G.Rajagopal, Senior Advocate for M/s.G.R.Associates. For respondent-1 in W.A.No.929 of 2006: Mr.R.Muthukumarasamy, Senior Counsel for Mr.S.T.S.Murthi For respondent-2 in both Writ Appeals : Mr.V.M.G.Ramakkannan For respondent-3 in W.A.No.929 of 2006 and for respondent-4 in W.A.No.933 of 2006: Mr.R.C.Paul Kanagaraj For respondent-3 in W.A.No.933 of 2006 : Mr.N.G.R.Prasad, Senior Counsel for Mr. R. Rajaram. For respondent-4 in W.A.No.929 of 2006 and respondent-5 in W.A.No.933 of 2006: Mr.P.R.Gopinathan the court made the following order : Judgment F.M.Ibrahim Kalifulla,J. The Bar Council of India (for short, BCI), represented by its Secretary is the appellant in both the Writ Appeals. The appellant- BCI is aggrieved by the order of the learned single Judge dated 20.4.2006 in W.P.No.10231 of 2006 (in W.A.No.929 of 2006) and dated 21.3.2006 passed in W.P.No.24928 of 2005 (in W.A.No.933 of 2006). 2. By the orders impugned in these Writ Appeals, the learned single Judge has taken the view in the Writ Petitions filed by the two Deemed Universities, namely Saveetha Institute of Medical and https://hcservices.ecourts.gov.in/hcservices/ Technical Sciences (for short, SAVEETHA) and Shanmuga Arts, Science, Technology and Research Academy (for short, SASTRA) were governed by the provisions of the University Grants Commission Act (for short, UGC Act) and therefore, Section 6 of the Tamil Nadu Dr.Ambedkar Law University Act, 1996 will have no application to such Deemed Universities (the first respondent in the Writ Appeals). The learned single Judge therefore set aside the order of the appellant-BCI directing the writ petitioners-Deemed Universities, to get "No Objection Certificate" (for short, NOC) from the State Government and recognition letter for the purpose of granting approval of "Affiliation" to the writ petitioners to start a Law course. The learned Judge also directed the appellant-BCI to consider the application of the first respondent-Writ Petitioners (Deemed Universities) for approval of the Affiliation to B.A., LL.B. (five years-integrated) and LL.B. (three years) Law courses without reference to the NOC from the State Government. The learned single Judge however made it clear that the appellant-BCI is entitled to consider the request for approval of the Affiliation on the basis of its inspection report. 3. Assailing the orders of the learned single Judge, Mr.Venkatakrishnan, learned counsel appearing for the appellant-BCI, after referring to Rules 16,17 and 18 of Part IV, Section A of the amended BCI Rules, Section 2(a), (p) and (q), 5(v) of the Tamil Nadu Dr.Ambedkar Law University Act (for short, "Dr.Ambedkar Law University Act"), Section 3 of the UGC Act and Section 7(h) and (i) and 49 (af) and (d) of the Advocates Act, contended that by virtue of the above provisions, the BCI is entitled to insist for the NOC from the State Government and also a recognition letter from Dr.Ambedkar Law University for the purpose of considering the application of the writ petitioners-Deemed Universities, for grant of approval of Affiliation. The main thrust of the argument of the learned counsel appearing for the appellant-BCI was based on Section 6(1) and (2) of Dr.Ambedkar Law University Act read along with Rules 16 and 18(2) of Part IV, Section A of the BCI Rules. The learned counsel for the BCI submitted that by virtue of Section 6(1) and (2) of Dr.Ambedkar Law University Act read along with Rules 16 and 18(2) of Part IV, Section A of the amended BCI Rules, unless an Affiliation from Dr.Ambedkar Law University and the NOC from the State Government is obtained, the BCI cannot grant approval of the Affiliation. The learned counsel for BCI relied upon 2000 (7) SCC 746 (Maharishi Dayanand University vs. M.L.R.Saraswati College of Education), 2003 (3) SCC 321 (St.John's Teachers Training Institute vs. Regional Director, NCTE), 2005 (3) SCC 212 (Govt. of A.P. vs. J.B.Educational Society) and 2005 (4) SCC 89 (Krishnasamy Reddiar Educational Trust vs. Member Secretary, National Council for Teacher Education). 4. Mr.V.M.G.Ramakkannan, learned counsel appearing for the second respondent--Dr.Ambedkar Law University, in his submissions stated that the provisions under Dr.Ambedkar Law University Act contemplated a ban for starting a Law course by an institution or University within the University area as defined under Dr.Ambedkar Law University Act in the State of Tamil Nadu without the permission of Dr.Ambedkar Law University and the NOC from the State Government. According to the learned counsel for Dr.Ambedkar Law University, the Deemed Universities do not enjoy equal status and privileges like https://hcservices.ecourts.gov.in/hcservices/ that of the Universities in the eye of law. 5. Mr.P.R.Gopinathan, learned Standing Counsel appearing for the fourth respondent in W.A.No.929 of 2006 and the fifth respondent in W.A.No.933 of 2006, namely the UGC, in his submissions, stated that the Deemed Universities, when once accorded such status, under the provisions of the UGC Act, are conferred with all the powers that are available to Universities in the eye of law, except the power of Affiliation of other Colleges with it. 6. Mr.N.G.R.Prasad, learned counsel appearing for the impleaded third respondent in W.A.No.933 of 2006, namely The Students Federation of India (for short, S F I), in his submissions contended that by virtue of the provisions contained under the Advocates Act read along with Rule 18(d)(1) and (2) of Part IV, Section A of the amended BCI Rules, the Parliament thought it fit to bestow specific powers with the BCI to ensure that promotion of legal education is carried out with care and caution and therefore, in pursuit of the said aim, when the BCI has specified in Rule 18(b) and (2) of Part IV, Section A of the amended BCI Rules that the NOC should be obtained from the State Government, the learned single Judge was not right in rejecting the stand of the BCI by holding that the conferment of "Deemed University status" under the UGC Act would deprive the BCI to insist on a vital specification under its Rules which are framed under the provisions of another Central Act, namely the Advocates Act. According to the learned counsel for the S F I, the purport of such a Rule to direct the Deemed Universities to get the NOC from the State Government, is to ensure the quality education in legal matters and the learned single Judge was not right in holding that the issue was covered by the UGC Act, an occupied field and thereby the insistence of NOC from the State Government is not required. The learned counsel for the S F I relied upon 2007 (2) SCC 202 (Bar Council of India vs. Board of Management, Dayanand College of Law), 2004 (11) SCC 755 (Bharati Vidyapeeth vs. State of Maharashtra), 2005 (4) SCC 89 (cited supra), 2006 (4) SCC 65 (National Council for Teacher Education vs. Committee of Management), 2006 (3) L.W. 499 (Division Bench of Madras High Court) (Sathyabama Institute of Science and Technology (A Deemed to be University), etc. vs. Union of India and two others) and AIR 1968 SC 888 (O.N.Mohindroo vs. Bar Council of Delhi and others). 7. As against the above submissions, Mr.G.Rajagopal, learned Senior Counsel appearing for the first respondent-SASTRA in W.A.No.933 of 2006, in his submissions stated that the "Deemed University status" was conferred on the SASTRA by virtue of the provisions contained in Section 3 of the UGC Act and that when once such a status was conferred, by virtue of Section 22 of the UGC Act, the SASTRA is entitled to confer Degrees which are prescribed under the provisions of Dr.Ambedkar Law University Act, which inter-alia included Degrees in Law, namely Bachelor of Law, Master of Law, etc., and therefore, as a Deemed University, the SASTRA need not have to seek for further Affiliation from Dr.Ambedkar Law University. According to the learned Senior Counsel appearing for SASTRA, by virtue of the provisions contained under the UGC Act, the Deemed Universities are to be treated as Universities themselves in their activities in the matter of education, except Affiliation of other https://hcservices.ecourts.gov.in/hcservices/ Colleges with them and therefore, their status having been governed by the provisions of the UGC Act, which is a Central Legislation, which in turn falls under Entry 66 of the List-I – Union List (7th Schedule, Article 246) under the Constitution of India, the State Legislation, namely Dr.Ambedkar Law University Act, will have no application to the SASTRA. The learned counsel therefore contended that Section 6 of Dr.Ambedkar Law University Act cannot be extended to the SASTRA in order to insist for NOC from the State Government for "recognition" by Dr.Ambedkar Law University to consider the application filed by the SASTRA for grant of approval of Affiliation by the appellant-BCI. The learned Senior Counsel appearing for SASTRA relied upon the following decisions in support of his submissions: (i) 2004 (11) SCC 755 (cited supra); (ii) AIR 1999 SC 1167 (V.Sudeer vs. Bar Council of India); (iii) AIR 1996 SC 2384 (T.K.V.T.S.S.Medical Educational and Charitable Trust. vs. State of Tamil Nadu); (iv) 2006 (3) M.L.J. 1037 (Division Bench of Madras High Court) (State of Tamil Nadu vs. V.S.B.Educational Trust); (v) 1987 (4) SCC 671 (Osmania University Teachers' Association vs.State of A.P); (vi) AIR 1999 SC 1762 (Shivaji University vs. Bharti Vidyapeeth); (vii) AIR 2001 SC 2861 (Bharathidasan University vs. All India Council for Technical Education); (viii) 1979 (Vol.118) I T R 235 (Division Bench of Madras High Court) (Addl. C.I.T. vs. Aditanar Educational Institution) and (viii) 2005 (5) SCC 420 (Prof.Yashpal vs. State of Chattisgarh). 8. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the first respondent in W.A.No.929 of 2006, namely Saveetha Institute of Medical and Technical Sciences, Deemed University (for short, SAVEETHA), submitted that there is no provision of law requiring the Deemed Universities to apply for and obtain a permission for establishing a Law course and therefore, Rule 18(2) of Part IV, Section A of the amended BCI Rules cannot be put against them. The learned Senior Counsel appearing for the SAVEETHA therefore contended that any law which is putting forward a requirement for getting permission, must be a valid law in the context of the Advocates Act, and the BCI Rules which are referable to Entry 77 and Entry 78 of List-I of Seventh Schedule (Article 246) of the Constitution of India and there can be no law or a State Legislation requiring permission of the State Government to start a Law course. The learned counsel appearing for the SAVEETHA also contended that the Deemed Universities cannot be treated as institutions or Colleges for the purpose of any Act, in view of the provisions of the UGC Act. The learned counsel appearing for the SAVEETHA referred to similar provisions of law like that of Section 5(v) of Dr.Ambedkar Law University Act as contained in the M.G.R. Medical University Act, which was struck down by the Supreme Court in the judgment reported https://hcservices.ecourts.gov.in/hcservices/ in 1996 (3) SCC 15 = AIR 1996 SC 2384 (T.K.V.T.S.S. Medical Educational and Charitable Trust vs. State of Tamil Nadu). The learned Senior Counsel appearing for the SAVEETHA also relied upon the following decisions in support of his submissions: (i) AIR 1968 SC 888 (cited supra); (ii) 2007 (2) SCC 202 (cited supra); (iii) 2006 (3) SCALE 675 (State of Maharashtra vs. S.D.S.S.Mahavidyalaya); (iv) 2005 (2) CTC 182 (Madras High Court-Division Bench) (Bharathidasan University vs. Dhanalakshmi Srinivasan Educational and Charitable Trust) and (v) 1995 AIR SCW 3701 (State of Maharashtra vs. Manubhai Pragaji Vashi). 9. In order to appreciate the rival contentions of the parties, we feel it appropriate to extract the relevant provisions which were referred to by the learned counsel for the respective parties. Such provisions are Sections 2(a), (p) and (q), 5(v) and 6 of the Tamil Nadu Dr.Ambedkar Law University Act, Sections 7(h) and (i) and 49(1) (af) and (d) of the Advocates Act, Sections 2(f), 3 and 22 of the UGC Act and Rules 16, 17 and 18(2) of Part IV, Section A of the amended BCI Rules. The provisions referred to above read as under: The Tamil Nadu Dr.Ambedkar Law University Act: "Section 2: Definitions: Section 2(a): Affiliated college: 'Affiliated College' means a college or institution situate within the University area and affiliated to the University; a college deemed to be affiliated to the University and an autonomous college; Section 2(p): University: 'University' means the Tamil Nadu Dr.Ambedkar Law University. Section 2(q): University area: 'University area' means the area to which this Act extends under sub-section (2) of section 1 excluding the Annamalai Nagar as defined in clause (a) of Section 2 of the Annamalai University Act, 1928. Powers and functions of University: Section 5(v): The University shall have the powers,-- (i) ... (ii)... (iii) ... (iv) ... (v) to affiliate colleges to the University under the conditions prescribed and to withdraw such affiliation; https://hcservices.ecourts.gov.in/hcservices/ Provided that no college shall be affiliated to the University unless the permission of the Government to establish such College has been obtained and the terms and conditions, if any, of such permission has been complied with. Colleges not to be affiliated to any other University and recognition of college by University: Section 6: (1) No Law college or institution imparting legal education within the University area shall be affiliated to any other University other than the Tamil Nadu Dr.Ambedkar Law University. (2) No Law college or institution imparting legal education affiliated to, or associated with, or maintained by, any other University, whether within the State of Tamil Nadu or outside the State of Tamil Nadu, shall be recognised by the University for any purpose except with the prior approval of the Government and the University concerned." The Advocates Act, 1961: "Sections 7(h) and (i): Section 7: Functions of Bar Council of India: (h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils; (i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf; Section 49(1)(af) and (d): Section 49: General power of the Bar Council of India to make rules:-- (1) The Bar Council of India may make rules for discharging its functions under this Act and, in particular, such rules may prescribe-- (af) the minimum qualifications required for admission to a course of degree in law in any recognised University. (d) the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose." https://hcservices.ecourts.gov.in/hcservices/ University Grants Commission Act, 1956: "Section 2(f): Definition of "University": "University" means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act. Section 3: Application of Act to institutions for higher studies other than Universities— The Central Government may, on the advice of the Commission, declare, by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2. Section 22 : Right to confer degrees-- (1) The right of conferring or granting degree shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees. (2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree. (3) For the purposes of this section, "degree" means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette." Amended Bar Council of India Rules: Part IV. Section A: Rules 16, 17 and 18(2): "Rule 16: A law college affiliated to a university shall by 1st June 1987 be an independent Law College and shall cease to be a department attached to a college. Rule 17: (1) No college, after the coming into force of these rules, shall impart instruction in a course of study in law for enrolment as an advocate unless its affiliation has been approved https://hcservices.ecourts.gov.in/hcservices/ by the Bar Council of India. (2) An existing Law College shall not be competent to impart instruction in a course of study in law for enrolment as an advocate if the continuance of its affiliation is disapproved by the Bar Council of India. Rule 18(2): Every law college applying for approval of affiliation shall obtain permission/no objection for establishment of law college from Government or Higher Education Department of the State, if the same is a requirement under the prevailing law or any order in the State." 10. To reiterate the contention of the learned counsel appearing for the appellant, namely the BCI, the submission was mainly based on Section 6 of Dr.Ambedkar Law University Act, 1996 and Rule 18(2) of Part IV, Section A of the amended BCI Rules. Under Rule 18(2) of Part IV, Section A of the amended BCI Rules, the stipulation is to the effect that for the grant of approval of Affiliation, permission/No Objection for establishment of a Law College should be obtained from the Government or Higher Education Department of the State, only if the same is a requirement under the prevailing law or any order in the State. Therefore, what is to be examined in respect of a "Deemed University" when it applies for approval of Affiliation before the BCI, is whether there is any requirement under any prevailing law of the State or any order of the State which stipulates that such permission/No Objection should be obtained for that purpose. It will have to be stated that Rule 18(2) of Part IV, Section A of the amended BCI Rules by itself does not stipulate that every "Deemed University" when it applies for approval of Affiliation should mandatorily obtain the permission or No Objection from the State Government or Higher Education Department of the State. Therefore, it will have to be seen whether the reliance placed upon Section 6 or Section 5(v) of Dr.Ambedkar Law University Act would fit in within the requirements stipulated under Rule 18(2) of Part IV, Section A of the amended BCI Rules, and for that purpose, when we examine Section 6 of Dr.Ambedkar Law University Act, we find that Section 6(1) only talks of Affiliation of any Law College or institution imparting legal education with Dr.Ambedkar Law University, if such a Law College or institution is to function within the "University area" as defined under Section 2(q) that Act. Under Section 2(q) of Dr.Ambedkar Law University Act, the "University area" has been defined to mean the whole of the State of Tamil Nadu excluding Annamalai Nagar as defined in Clause (a) Section 2 of the Annamalai University Act, 1928. Therefore, a Law College simpliciter or an institution, imparting legal education, definitely would stand apart from a "University" as defined under the provisions of the UGC Act. Therefore, there is no question of Affiliation of a course to be started by a "Deemed University" with Dr.Ambedkar Law University, as the same is not covered by Section 6(1) of Dr.Ambedkar Law University Act. We say so because, a perusal of Sub-section (2) of Section 6 of Dr.Ambedkar Law University Act specifically deals with Law College or institution imparting legal education which are 'affiliated" with https://hcservices.ecourts.gov.in/hcservices/ other University. As far as Sub-section (2) of Section 6 of Dr.Ambedkar Law University Act is concerned, a close reading of the said provision discloses that the same does not contemplate Affiliation of any Law College or institution imparting legal education with Dr.Ambedkar Law University. The specific prescription under Sub-section (2) of Section 6 of Dr.Ambedkar Law University Act relates to recognition by Dr.Ambedkar Law University for any purpose. Therefore, only in the event of recognition being sought for by a Law College or institution imparting legal education which are affiliated with any other University either within the State of Tamil Nadu or outside the State of Tamil Nadu, for any purpose, and in such