Case: D.A.V. College &amp; Others Vs. State of Punjab &amp; Others

case of such a threat or violation is made out a petition under Article 32 must be entertained. Secondly, once it is entertained irrespective of whether it is found ultimately that in fact no fundamental rights of the petitioners are invaded the vires of the legislation or the competence of the Legislature to enact the impugned legislation must be gone into and determined. While the first proposition is valid, the second is not. 51. Shri Tarkunde the learned Advocate for the respondents in Writ petitions Nos. 353 and 354 of 1970 which were heard immediately after these petitions has raised a contention similar to that raised in the second submission in support of which he referred to the case of Mohammad Yasin v. The town Area committee, Jalalabad and Another. (1952 SCR 572 : AIR 1952 SC 115 : 1952 SCJ 162 ) We do not think that this decision supports his contention because in that case it was held that in the absence of any valid law authorising the Town Committee to levy any fees otherwise than for the use of any immovable property vested in or entrusted to the management of the Town Committee such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by Article 19(1)(g) of the Constitution. In that case the levy on the petitioner as a wholesale dealer was held to be obviously ultra vires the powers of the Committee and therefore the bye-law under which such a fee was levied could not be said to constitute a valid law which alone may under Article 19(6) of the Constitution impose a restriction on the right conferred by Article 19 (1)(g). It is, therefor, clear that as long as the petitioner makes out a prima facie case that his fundamental rights are affected or threatened he cannot be prevented from challenging that the law complained of which affects or invades those rights is invalid because of want of legislative competence. 52. In Chiranjitlal Chowdhuri v. The Union of India and Others, (1950 SCR 869 : AIR 1951 SC 41 : 1951 SCJ 29 ) Mukherjea, J. as he then was gave expression to a similar view as to the maintainability of a petition under Article 32. At page 899 he said :"To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular Legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order". 53. It is apparent therefore that the validity or the invalidity of the impugned law, on the ground of legislative competence should purport to infringe that fundamental rights of the petitioner as a necessary condition of its being adjudicated. But if in fact the law does not, even on the assumption that it is valid, infringe and fundamental rights, this Court will not decide that question in a petition under Article 32. The reason for it is obvious, namely that no petition under Article 32, will be entertained if fundamental rights are not affected and if the impugned law does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or not. 54. Gajendragadkar, J. as he then was, in Khyerbari Tea Co. Ltd., and Another v. State of Assam, (1964 (5) SCR 975 : AIR 1964 SC 925 : (1964) 2 SCA 317) while dealing with a challenge to the validity of Section 24 of the Assam Taxation on Goods Act, 1961 said at page 1009 :"There may be some force in this contention, but we do not see how the petitioners can be permitted to challenge the validity of Section 24 when it is not alleged by them that any action is proposed to be taken against them under the said Section. In dealing with the petition under Article 32 this Court would naturally confine the petitioners to the provisions of the impugned Act by which their fundamental rights are either affected or threatened. That is why we are not satisfied that it is necessary to decide the question about the validity of Section 24 in the present proceeding". 55. In Saghir Ahmad v. State of U. P. (1955 SCR 707 at 726 : AIR 1954 SC 728 : 1954 SCJ 819 ) it was held that when the enactment on the face of it is found to violate the fundamental rights guaranteed under Article 19(1)(g) of the Constitution it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in Clause 6 of the Article but if the respondents did not place any materials before the Court to establish that the legislation comes within the permissible limits of Clause 6, it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community. There are other such instances where this Court has drawn an initial presumption of constitutionality when a statute was impugned as being unconstitutional. 56. This being the legal position in our view when once an impugned law does not affect the fundamental rights of the petitioners as in this case we have founded it to be so, it is not necessary to go into the question of legislative competence or to decide on the validity of Section 5. 57. We have therefore no hesitation in holding that the notification under which the colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners colleges cease to be affiliated to the Punjab University.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]This argument however overlooks the basis tents of the sect in that it admits to membership only those Hindus who subscribe to the decalogue and its beliefs in the canons of Vedic interpretation laid down by Swami Dayanand but all outsiders who are non-Hindus such as Muslims and Christians must undergo a ceremony of purification or ShudhiIn our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 of Chapter V of the statutes which decidedly interfere with the rights of management of the petitioners colleges. These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve disaffiliation and consequently they will have to be struck done as offending Article 30(1)Clause 18 however in our view does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institution empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger interests of the institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers in all non-Government colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Article 30(1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicateIt is apparent therefore that the validity or the invalidity of the impugned law, on the ground of legislative competence should purport to infringe that fundamental rights of the petitioner as a necessary condition of its being adjudicated. But if in fact the law does not, even on the assumption that it is valid, infringe and fundamental rights, this Court will not decide that question in a petition under Article 32. The reason for it is obvious, namely that no petition under Article 32, will be entertained if fundamental rights are not affected and if the impugned law does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or notThis being the legal position in our view when once an impugned law does not affect the fundamental rights of the petitioners as in this case we have founded it to be so, it is not necessary to go into the question of legislative competence or to decide on the validity of Section 550. We havetherefore no hesitation in holding that the notification under which the colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners colleges cease to be affiliated to the Punjab University.