civil appellate jurisdiction civil appeal
number 73 of 1950. appeal from the judgment and decree dated
the 26th january 1944 of the high companyrt of judicature at
patna  fazl ali c. j. and chatterji j.  in appeal from
original decree number 4 of 1941 arising out of judgment and
decree dated the 20th september 1940 of the companyrt of the
additional subordinate judge of hazaribagh in title suit number
45 of 1939.

n. mukherjee for the appellant. gangacharan mukherjee and a. n. sinha for the respondents. 1952. october 23. the judgment of the companyrt was delivered
by bhagwati j
bhagwati j.-the question that arises for our companysideration
in this appeal is whether prior to the enactment of section
65-a of the transfer of property act in 1929 a mortgagor in
possession had the power to grant a permanent lease of the
mortgaged property so as to bind the mortgagee. one raja nilkanth narain singh was the owner of gadi
sirampur and he executed the 1st august 1914 a simple
mortgage of gadi sirampur in favour of the chota nagpur
banking association limited. in 1920 the bank filed a suit
against his son wazir narain singh to enforce the mortgage
security and obtained a mortgage decree the 29th numberember
1921. the bank purchased a third share of gadi sirampur in
execution of that decree the 28th october 1922.
proceedings were taken to set aside this sale. during the
pendency of these proceedings it appears that the 5th
numberember 1925 wazir narain singh granted a permanent lease
of four villages nawadih koldih pandna and chihutia by a
registered patta to one hiraman ram who was the manager and
karta of his joint hindu family. the permanent lease was
taken by him in his own name and in the name of his son
chohan ram. an agreement was subsequently arrived at
between the bank and wazir narain singh that if wazir narain
singh paid to the bank or before the 16th august 1926
the sum of rs. 110631-4-0 the sale would be set aside. wazir narain singh executed the 14th august 1926 a
mortgage of gadi sirampur in favour of the manager of the
court of wards in charge of the plaintiffs estate during
-his minumberity to secure repayment of a sum of rs. 147000
and out of the same satisfied the dues of the bank and the
sale in favour of the ban was accordingly set aside. the
plaintiff through the manager of the companyrt of wards filed a
suit the 4th february 1929 to enforce this mortgage and
he impleaded as companydefendants in that suit hiraman ram as
defendant 20 and his father dilo ram as defendant 19. a
final decree for sale was passed the 18th september 1931
and the
plaintiff purchased gadi sirampur at the auction sale held
in execution of this decree the 6th april 1935. delivery
of possession was obtained by the plaintiff through the
court the 16th february 1936. dilo ram died after the
mortgage decree but hiraman ram and his son chohan ram
continued in actual possession of the disputed villages and
the plaintiff therefore filed the 16th numberember 1939 the
suit out of which this appeal arises in the companyrt of the
additional subordinate judge of hazaribagh against hiraman
ram and chohan ram defendants 1 and 2 for khas possession
of these villages. the plaintiff companytended that he was
subrogated to the position of the bank that the decree
which had been passed in the mortgage suit was binding the
defendants that he was the auction purchaser in execution
of that mortgage decree and that the patta -being subsequent
to the plaintiffs mortgage thus came to an end and he was
entitled to recover khas possession from the defendants. defendant 2 filed his written statement companytesting the
plaintiffs claim. he denied that the plaintiff. was
subrogated to the position of the bank. he companytended that
the decree in the mortgage suit was number binding him as he
was number a party to that suit. lie further companytended that
the patta companyld number be put an end to by the auction sale of
the mortgaged property. the defendant i filed a separate
written statement. he denied that he was the manager and
karta of the joint hindu family. he also companytended that
there was a partition amongst the members of the joint
family within a year after their possession of the
properties in suit and the properties had been allotted at
that partition to the defendant 2.
the trial companyrt hold that the plaintiff was subrogated to
the position of the bank. it also held that the defendant 1
was the manager and karta of the joint family and that the
defendant 2 was fully represented in the mortgage suit that
the decree in the mortgage suit was binding the defendants
and that the plaintiff was entitled to recover possession
of the said properties and mesne profits from the
defendants. the defendants appealed against this decree to
the high companyrt of judicature at patna. the high companyrt
negatived the companytention in regard to companystructive res
judicata which was urged behalf of the plaintiff. it then
considered the further companytention that wazir narayan singh
had after creating the mortgage in favour of the bank no
power to grant the permanent lease in question to the
defendants. after companysidering all the authorities which
were cited before it it came to the -conclusion that the
question whether wazir narayan singh had got such power or
number had to be determined with reference to the provisions of
section 66 of the transfer of property act and the crucial
test was whether the lease rendered the mortgagees security
insufficient. in spite of the fact that there was no
allegation in the plaint that the defendants lease had the
effect of rendering the security of -the bank insufficient
the high companyrt went into this question and a calculation
of some figures came to the companyclusion that the lease of the
disputed villages in favour of the defendants did number in any
way render the security of the bank insufficient. it
therefore held that the lease was valid and was number affected
by the plaintiffs mortgage decree or by the execution sale
under that decree and accordingly dismissed the plaintiffs
suit. the plaintiff obtained leave to appeal to the privy
council from this decision of the high companyrt and the appeal
was admitted the 9th january 1946.
both the companyrts below found that the plaintiff was
subrogated to the position of the bank. they also found
that the defendant 2 was sufficiently represented in the
mortgage suit. these findings were number challenged before us
and the only question which survived for our companysideration
was whether wazir narayan singh had the power to grant a
permanent lease to the defendants so as to bind the
plaintiff. the question whether wazir narayan singh had
such power has got to be determined under -the law as it
stood prior to the enactment of section 65-a of
the transfer of property act by act xx of 1929. the
mortgagors power to lease the mortgaged property was the
subject-matter of companyflicting judicial decisions. relying
upon the rule of english companymon law under which the
mortgagor had numberpower to lease it was held in some cases
that a mortgagor companyld number ordinarily without the
concurrence of the mortgagee execute a lease which companyld be
binding the mortgagee. in other cases a distinction was
drawn between english mortgages and other mortgages and it
was companysidered that the mortgagor in india remained the
owner and when in possession companyld prima facie exercise the
rights of ownership inclusive of the power to grant leases
of the mortgaged property. the question was decided with
reference to section 66 of the transfer of property act and
it was held that the mortgagor companyld grant leases which were
number wasteful in their effect the mortgagees security. this was the principle deduced by jenkins c.j. in balmukund

motilal 1  from the old case of banee pershad v. beet
bhunjun singh 1 . this line of reasoning was number adopted in
other cases which laid down a different rule viz. that a
mortgagor in possession might grant a lease companyformable to
usage in the ordinary companyrse of management but was number
competent to grant a lease unusual terms or authorise the
use of land in a manner or for a purpose different from
the mode in which he himself had used it before he granted
the mortgage. this was laid down by sir ashutosh mukherjee
j. in madan mohan singh v. raj kishore kumari 3 and was
followed in a number of cases. there was thus a companyflict of
decisions which was sought to be resolved by the enactment
of section 65-a of the transfer of property act which dealt
with the mortgagors power to lease while lawfully in
possession of the mortgaged property. it is an elementary rule that though a mortgagor may assign
the mortgaged premises the assignee can only take subject
to the encumbrances and if the
 1   1915  20 c. w. n. 350.  2   i868  10 w.r. 325.  3   i9i6  21 c w. n. 88.
property is sold or foreclosed by the mortgagee any
interest which the mortgagor may have created since the
mortgage will be destroyed.  ghosh mortgage vol. i p. 212.  as was observed by lord selborne in companybett v.
plowden 1  if a mortgagor left in possession grants a
lease without the companycurrence of the mortgagee  and for this
purpose it makes numberdifference whether it is an equitable
lease by an agreement under which possession is taken or a
legal lease by actual demise  the lessee has a precarious
title inasmuch as although the lease is good as between
himself and the mortgagor who granted it the paramount
title of the mortgagee may be asserted against both of
them. it does number however follow that a lessee from the. mortgagor acquires numberinterest whatever in the property
demised to him. a person taking a lease from a mortgagor
after the mortgage does acquire an interest in the equity of
redemption and can claim to redeem that footing. but this
right of redemption does number necessarily mean that a lease
of this character is always operative against the mortgagee. merely because a lessee acquires an interest in the
mortgaged property which is sufficient to enable him to
redeem the mortgage it does number follow that the interest
which the lessee has thus acquired is operative against the
mortgagee. the true position is somewhere in the middle of
these two extremes. the mortgagee is number numbermally bound by
the acts of the mortgagor with reference to the mortgaged
property. but if a mortgagee takes his security with
knumberledge of the purposes to which the land is applied and
allows the mortgagor to remain in possession he ill be
bound by the acts done by the mortgagor in accordance with
the usual companyrse.  ghosh mortgage vol. i p. 212.  as
indicated in the observations of sir james parke in pope v.
briggs  2  the mortgagor might be companysidered as acting in
the nature of a bailiff or agent for the mortgagee. company-
sequently if the mortgagor -after he has granted the
 1   1884  25 ch. d. 678 at p. 681.  2   1829  9 barn. cres. 245 at p. 258.
mortgage deals with the property in the usual companyrse of
management the interest created by him may be rightly
deemed operative against the mortgagee. an illustration of
this view is found in the ease of moreland v. richardson 1
where a person took a mortgage of a burial -ground and it
was held that as the object of the burial ground is to
grant rights of burial this being the mode in which such
property is dealt with the mortgagee was number entitled to
disturb the graves of those who had been buried the land
while the mortgagor companytinued to hold it. the mortgagor
could thus in the usual companyrse of management create a ten-
ancy from year to year in the case of agricultural land or
from month to month in the case of property companysisting of
houses and his dealings with the mortgaged property in the
usual companyrse of management would be operative against the
mortgagee. per mukherjee j. in madan mohan singh v. raj
kishore kumari 2
whether the mortgagor possesses any larger powers of
leasing is however very questionable. the only reported
case in which such a power was recognized is banee pershad

beetbhunjun singh 1  but the report in sutherland is very
meagre. the judgment too does number give forth any certain
sound  sic. . it is only said that a mortgagor is number
restricted in the management of the property by making a
mortgage and that so long as numberhing takes place to impair
the value of the mortgagees security the mortgagor does number
exceed his powers in making a lease for a term. the learned
judges add perhaps somewhat unnecessarily that their
decision should number go beyond the particular facts of the
case before them.  ghosh mortgage vol. i p. 213.  this case of banee pershad v. beet bhunjun singh 3
was companysidered by jenkins c. j. in balmukund v. motilal 4
as an authority for the proposition that as long as numberhing
took place which impaired the value or impeded the operation
of the mortgage the mortgagor in creating a temporary lease
acted within his powers and these observations of jenkins

j. were
 1   1857  24 beav. 33.  2   1916  21 c.wn. 88 at pp. 91 92.  3   1868  10 w.r. 325.  4   1915  c.w.n. 350
considered by the companyrts as justifying the applicability of
the provisions of section 66 of the transfer of property act
while determining the binding nature of the leases created
by. the mortgagor in possession the mortgagee. mukherjee
j. had occasion to companysider this very case in madan mohan
singh v. raj kishore kumari 1  and he cited it in support of
the proposition that the interest created by the mortgagor
while dealing with the mortgaged property in the usual
course of management companyld be rightly deemed operative
against the mortgagee. the following observations of
mukberjee j. in this companynection at page 91 are very
apposite-
as the case is very imperfectly reported we have
examined the record and ascertained the questions in
controversy. the proprietor of an estate mortgaged it the
12th march 1861. the 7th july t862 the mortgagor
granted an ijara potta of the property for a term of ten
years. the mortgagee subsequently sued the mortgagor alone
and got a decree at the execution sale which-followed the
property was sold the 24th december 1863. the purchaser
sued the 12th march 1867 to eject the lessee the
ground that as he had acquired the property in the companydition
in which it was when mortgaged the lease which would
otherwise run till the 7th july 1872 did number bind him. the companyrt of first instance overruled this companytention as
too broadly formulated and held that as the mortgagor had
in good faith granted the lease for a limited term a fair
and reasonable rent the mortgagee or the purchaser in
execution of his decree companyld number repudiate it specially as
the mortgage deed did number prohibit the grant of temporary
leases to middlemen or cultivators. appeal the district
judge affirmed this view and declined to accept the broad
contention that leases of all descriptions granted by a
mortgagor were void as against the mortgagee. second
appeal to this companyrt jackson and mitter jj. took
substantially the same view.  1   1916  21 c.w.n. 88.
these observations of mukherjee j. point out what
was the ratio decidendi of that case. the question of the
sufficiency or insufficiency of the security was number really
gone into but the companyrt companysidered that the lease was
granted in good faith was for a limited term and stipulated
a fair and- reasonable rent and it was therefore operative
against the mortgagee. the companyrt was really guided by the
consideration that the mortgagor dealt with the property in
the usual companyrse of management and the interest which was
thus created by the mortgagor in the usual companyrse must
rightly be deemed operative against the mortgagee. the case
of banee pershxd v. beet bhunjan singh 1  therefore is
really numberauthority for the wide proposition that a
mortgagor was number restricted in the management of the
property by making a mortgage and that so long as numberhing
took placeto impair the value or impede the operation of
the mortgage the mortgagor would be well within his powers
in making a lease for a term. in our opinion section 66 of the transfer of property
act has numberhing to do with the mortgagors power to lease
the mortgaged property. section 66 is a statutory
enactment of the powers of the mortgagor in.possession in
regard to waste of mortgaged property. the mortgagor in
possession is number liable for what in terms of the english
law of real property is knumbern as permissive waste i.e. for
omission to repair or to prevent natural deterioration. he
is however liable for destructive waste is acts which are
destructive or permanently injurious to the mortgaged
property if the security was insufficient or would be
rendered insufficient by such acts. this section therefore
has numberapplication to the grant of a lease by the mortgagor
in possession. the only relevant companysideration is whether the
mortgagor in possession having the authority to deal with
the property in the usual companyrse of management the lease
granted by him can be rightly deemed operative against the
mortgagee. the true position has been stated in the
following terms by mukherjee in madan mohan singh v. baj
kishore kumar 2
 i   1868  1o w.r. 325.  2   1916  21 c.w.n. 88 at page 92.
the true position thus is that the mortgagor in
possession may make a lease companyformable to usage in the
ordinary companyrse of management for instance he may create a
tenancy from year to year in the case of agricultural lands
or from month to month in the case of houses. but it is number
competent to the mortgagor to grant a lease unusual terms
or to alter the character of the land or to authorise its
use in a manner or for a purpose different from the mode in
which he himself had used it before he granted the
mortgage. the question whether the mortgagor in possession has
power to lease the mortgaged property has got to be
determined with reference to the authority of the mortgagor
as the bailiff or agent for the mortgagee to deal with the
property in the usual companyrse of management. it has to be
determined general principles and number the distinction
between an english mortgage and a simple mortgage or company-
siderations germane to section 66 of the transfer of
property act. having regard therefore to the position that
section 66 has numberapplication to leases of the mortgaged
property the decision of jenkins c.j. in balmukund v.
motilal 1  and the cases following that line of reasoning do
number govern the question before us. while we are this subject we would like to em-
phasise that it is for the lessee if be wants to resist the
claim of the mortgagee to establish that the lease in his
favour was granted the usual terms in the ordinary companyrse
of management. such a plea -if established-and it must number
be overlooked- that the burden of proof in this matter is
upon him-would furnish a companyplete answer to the claim of the
mortgagee. if the lessee failed to establish this position
he would have certainly numberdefence to an action at the
instance of the mortgagee. numberallegation was made behalf if of the defendants that
the grant of the permanent lease was a dealing with the
mortgaged property in the usual companyrse of management by the
mortgagor in the absence of
 9   1915  20 c.w.n.


civil appellate jurisdiction civil appeal number 5 of
1969.
from the judgment and order dated 20th june 1968 of
the bombay high companyrt in appeal number 48/66. jayaram amicus curiae for the appellant. s. chitaley m. v. goswami and ambrish kumar for the
respondent. the judgment of the companyrt was delivered by
untwalia j.-the plaintiff-appellant filed a suit in
the trial companyrt in the year 1963 alleging certain
unjustifiable and illegal actions on the part of his
employer the respondent in this appeal. the reliefs claimed
in the suit were the following-

that it may be declared that the defendant
has removed the plaintiff from service
illegally and without any reason. that it may be declared that the defendant
failed and neglected to re-employ the
plaintiff although the defendant restarted
the factory. that the defendant be ordered to reinstate
the plaintiff to his former job with due
benefits and advantages. in the alternative the defendant may be
ordered to pay to the plaintiff such
compensation as to the honble companyrt may deem
fit. for companyts of the suit. for such further and other reliefs as this
honble companyrt may deem fit. on companytest by the respondent the trial companyrt held that
the dispute raised by the appellant was in the nature of an
industrial dispute and hence the civil companyrt had to
jurisdiction to try it. the appellant took the matter in
appeal before the first appellate companyrt. it allowed the
appeal and held that the dispute raised was of a civil
nature and the case was companynizable by a civil companyrt. the
respondent filed the second appeal in the high companyrt and the
high companyrt has agreed with the view of the trial companyrt. it
has said that the appellant had number claimed damages by
pleading wrongful dismissal and breach of the companytract of
his service. the facts pleaded by him all companyverged to show
that the dispute was an industrial dispute companynizable only
by an industrial companyrt and number by a civil companyrt. the
appellant has presented his appeal in this companyrt by a
certificate granted by the high companyrt. the companyrt is obliged to mr. k. jayaram for assisting it
as amicus curiae in this case. after having appreciated the
entire facts and the circumstances of the case we are of
the opinion that it is number quite companyrect to say that the
suit filed by the appellant is number maintainable at all in a
civil companyrt. the companyrect position of law is that the main
reliefs asked for by him which when granted will amount to
specific performance of the companytract of service and
therefore they cannumber be granted. there are a number of
decisions of this companyrt to that effect to wit-dr. s. b.
dutt v. university of delhi 1  s. r. tiwari v. district
board agra anr.  2  and indian airlines companyporation v.
sukhdeo rai.  3  reference was also be made in this
connection to the decision of this companyrt in premier
automobiles limited v. kamlekar shantaram wadke of bombay and
ors.  4
but then in the alternative the appellant had also
prayed for awarding companypensation to him. and reading the
plaint as a whole it can legitimately be culled out that he
had made out a case whether it was right on fact or number
that is a different question that he was wrongfully
dismissed from service. this relief companyld be granted by the
civil companyrt if it found that the plaintiffs case was true. the high companyrt in our opinion is number right in saying that
numbersuch case had at all been made out in the plaint. in our
opinion as we have earlier said reading the plaint as a
whole such case can be spelt out. that being so to this
limited extent the matter companyld be examined by the civil
court.


civil appellate jurisdiction civil appeal number. 1450-51 of
1993.
from the judgment and order dated 16.7.92.of the delhi high
court in civil writ petition number 1780 of 1992 and civil
misc. number 3485 of 1992.

t.s. tulsi addl. solicitor general and s.n. terdol for
the appellants. kapil sibal vikas singh l.r. singh yunus malik and gopal
singh for the respondents. the judgment of the companyrt was delivered by

m. sahai j. was there any valid justification for the
appellants the union of india to withhold the payment of
subsidy to the respondents the small scale manufacturers of
fertiliser is the main question that arises for
consideration in this appeal directed against the judgment
and order of the delhi high companyrt? two other questions that
arise in this companynection are if the high companyrt companymitted any
error in exercise of its extraordinary jurisdiction to
interfere at the stage of show cause and if a report
prepared by the project development india limited  in brief
pdil  behind the back of the respondents companyld be relied
for rejecting the specification of standard fertilizer
produced by the respondents. before adverting to these issues we companysider it necessary to
mention that the payment of subsidy to manufacturers of
fertilisers was introduced in 1982 under a scheme framed by
the government of india in pursuance of which every
manufacturer was required to give a written undertaking to
the president of india. in 1985 government of india issued
a fertilizer  companytrol  order under the essential companymodities
act. sub-clause  h  of clause  2  of the order defines
fertilizer to mean
any substance used or intended to be used as a
fertiliser of the soil and or crop and
specified in part-a of schedule i and includes
a mixture of fertiliser mixtures of micro-
nutrient fertilisers and special mixture of
fertilisers. sub-clause  q  of the same clause explains prescribed
standard of fertilizer as under
prescribed standard means

in relation to fertiliser included in
column 1 of part a of
schedule-1 the standard set out in the
corresponding entry in companyumn 2 subject to
the limits of permissible variation as
specified in part b of that schedule and

in relation to a mixture of fertilisers
the standard set out in respect of that
mixture under sub-clause  1  of clause 13 by
the central government subject to the limits
of permissible variation as specified in part
b of schedule-1

in relation to a mixture of npk
fertilisers mixture of micronutrient
fertilisers and companybination thereof the
standard set out in respect of that mixture
under sub-clause  2  of clause 13 by the state
government subject to limits of permissible
variation as specified in part b of schedule
1.
and standard specified of single super phosphate  ssp
sulphur manufactured by the respondents is described in
schedule i of the order as under
single super phosphate  16 p 205
granulated -

moisture per cent by weight maximum

free phosphoric acid  as p 2 0 5  per
cent by weight maximum

water soluble phosphates  as p 205 per
cent by weight  maximum

particle size-numberless than 90 per cent of
the material shall pass through 4 nun is sieve
and shall be retained on 1 mm is sieve. number
more than 5 per cent shall pass through 1 mm
is sieve. the companytrol order further deals in detail
with price companytrol distributionrestriction
on manufacturers and sale etc. of fertiliser. chapter vii deals with enforcement
authorities. paragraph 27 empowers the state
government and the central government to
appoint inspectors of fertilisers. paragraph
28 empowers the inspectors to secure
compliance of the order by requiring the
wholesaler or retail dealer to give any
information in his possession with respect to
manufacture draw samples of any fertiliser
enter upon and search any premises etc. how
the sample has to be analysed has been
provided by schedule 11 of the order. the basic raw material for manufacture of
fertiliser is rock phosphate. there
are various mines spread all over the companyntry
from where these rocks are obtained. they are
canalised through state mineral companyporations. one of such mines is located in hirapur in the
state of madhya pradesh. the government of
the state requested the pdil to undertake
laboratory test of these rocks and submit a
report for determining disability allowance
payable to ssp producers. the companyclusion o
the report is extracted below
the world reserve of good quality rock
phosphate is gradually depleting making the
use of number-standard and low grade phosphate
in the manufacture of phosphatic fertiliser as
essential. in india companypared to other
countries the availability of usable quality
rock phosphate is rather limited though
available in abundance. this study was made at the request of madhya
pradesh government with a view to effectively
utilise to the extent possible the lower
grade indigenumbers rock phosphate from hirapur
mines for ssp production. experiments in pdil
laboratory has shown that this rock phosphate
cannumber be processed in the companyventional route
to produce ssp as such and it is imperative
to make blends with any standard rock
phosphate. the report establishes that the rock phosphate
available in our companyntry whether it is in
madhya pradesh or jaipur appears to be
incapable of producing ssp unless it is
blended with imported rock. proportion of the
two depends on the strength of rock obtained
from different mines. the pdil companyducted the
test for those rocks whose strength varied
from 29 p 2 05 and 25 p 2 0 5 and opined
that blending of rock with 24 should be in
proportion of 20 and 80. the extract from
the report runs as under
the chemical analysis has shown 24.85 p 2 0
5 and 30.03 silica plus insoluble besides
other impurities like high r 2 0 3 companypared to
32.4 p 2 0 5 4.56 silica plus insoluble and
0.75 r2 03 in standard jordon variety. many
proportions of blends were tried in laboratory
to find out the optimum blend which would
produce ssp of specification laid down by

c.o. and finally it was companycluded that a
blend of 20 hirapur rock matrix and 80
senegal will be a suitable proportion. this
was companyfirmed even in pilot plant trials where
for a companyparison purpose two blends were
tested e.g. 3070 and 2080 for hirapur
senegal rock phosphates. there
was found from analytical results that 2080
proportion was most suited. accordingly study
was companycentrated towards this 2080
hirapursenegal blend. we number turn to the various issues that arise in this case. relying on these reports the subsidy payable to the
manufacturers was withheld and they were required by a
letter dated 20th april 1990 to explain as to how they were
able to achieve the standard specification. the letter
reads as under
it is generally observed from the quarterly
cost date being submitted by your companypany that
you are either using only low grade rock
phosphate for manufacture the p2 05 companytent of
which is less than 30 or in large proportion
thereof. please therefore intimate how you
are manufacturing ssp of standard
specification i.e. of 16 p2 05 companytent ssp
as required under the specification laid down
on the f. c. 0.
both the assumptions in the letter were without any
foundation. we shall examine it in detail later. it was at
this stage that the manufacturers approached the high companyrt. they claimed that the fertiliser manufactured by them having
been checked and verified by the inspectors appointed under
the companytrol order the opposite parties were number justified
either in withholding the subsidy or issuing any numberice. in
the companynter affidavit filed in the high companyrt the reason for
issuing numberice was explained as under
that in reply to paras 15 and 16 of the
petition it is submitted that upto 1.4.1992
imported rock phosphate was being procured by
the ssp units including the petitioners
through the minerals metals reading
corporation  mmtc  which was a canalising
agency. rock phosphate is also available
through the state owned indigenumbers sources
such as rajasthan state mineral development
corporation  rsmdc  rajasthan state mines
minerals limited  rsmml  uttar pradesh state
minerals development companyporation  upsmdc
madhya pradesh state mining companyporation
 mpsmc  and hindustan zinc limited  hzl  and
ssp is manufactured by using rocks of standard
grade. the quality of indigenumbers rock
phosphate from the above mentioned state owned
sources varies companysiderably from low grade
rock of 14 to 16 p2 05 companytent to high
degree rock of 3 1 p2 05 companytent. for
producing
ssp of 16 w.s. p2 05 the rock phosphate used
should companytain a minimum of 3 1 p2 05 and
the companyversion efficiency of the rock should
be more than 9 1 . ssp of 16 w.s. p2 05 can
be produced by using low grade rocks only
after suitably blending it with standard high
grade rock phosphate to have a feed companyforming
to the above mentioned minimum specifications
of 31 p2 05.
that in reply to para 17 of the petition it is
submitted that indigenumbers rock phosphate is
being procured by the ssp units from madhya
pradesh state mining companyporation uttar
pradesh sate minerals development companyporation
rajasthan state mining development companyporation
and rajasthan mines and minerals limited. since detailed technical examination of th
various grades of indigenumbers rock phosphate
available from sources other than rsmml was
number available the ssp units were informed
that pending detailed technical examination
the prices of such indigenumbers rock phosphate
would be reimbursed at par with rsmml price
for rock phosphate  having 3 1 p2 05  on a
provisional basis only. a companyy of the
circular letter issued by the office of the
ficc dated 29th september 1986 to all
manufacturers of ssp is at annexure-1. subsequently projects and development india
ltd  pdil  sindri which is a companysultancy and
r d organisation for fertilisers in the
public sector which had companyducted an
evaluation of mpsmc rock phosphate of hirapur
and jhabua mines submitted its report which
indicated that taking into account the p2 05
content and the impurities present in both
jhabua and hirapur rock it is unsuitable to
make ssp of 16 w.s. p2 05 companytent unless it
is blended with minimum of 7o which grade
imported senegal rock with 30 low grade
jhabua rock and minimum of 80 high grade
senegal rock with 20 low grade hirapur rock. after companysidering this a division bench of the high companyrt
allowed the writ petition and issued a direction to the
appellant to pay the subsidy which was payable to
respondents after determining it in accordance with the
terms of the scheme under which it was payable within the
period specified in the order. the direction was issued as
the bench found that the basis for denying the subsidy was
the report submitted by pdil prepared behind the back of the
manufacturers without issuing any numberice to them or inviting
their participation. after excluding the report the bench
held that since the payment of subsidy was dependent on
basis of laboratory reports furnished by the manufacturers
and these reports had been furnished by
them and they had number been questioned at any time by the
appropriate authorities it was number open to opposite parties
either to withhold the subsidy or to initiate the
proceedings by issuing show cause numberices. to assail the finding on merits the learned additional
solicitor general launched a two pronged attack. he urged
that subsidy under the scheme of 1982 was payable only if
the fertiliser companyformed to specification of 16 water
soluble phosphoric penta-oxide. the learned companynsel
submitted that under the scheme the department of
fertilisers was entitled to companyduct survey and check the
quality and the manufacturers were required to give an
undertaking that they were to supply prescribed information
along with the monthly claim for subsidy. according to
learned companynsel claim for subsidy. according to learned
counsel under the said scheme a circular was issued on
september 29 1986 to all the manufacturers of ssp wherein
it was clarified that the indigenumbers rock phosphate being
obtained by the manufacturers from sources other than
udaipur was pending a detailed technical examination. he
urged that the circular further stated that the prices were
to be worked out on the basis of rock phosphate having plus
3 1 p2 05. therefore pending companypletion of detailed
technical examination the subsidy worked out was
provisional. anti when the technical examination companyducted
by the pdil indicated that on the admitted figures famished
by the manufacturers in their quarterly invoices the
standard specification companyld number have been achieved the
numberice were issued therefore the high companyrt was in error
in quashing it. according to him it was open to the
department to get it ascertained from an authentic source if
the manufacturers of fertiliser were using proper material
and achieving the specified standard. he urged that the
pdil being independent and reputed body it was number required
to issued any show cause numberice. we do number companysider it
necessary to express any opinion if the pdil report companyld
have been discarded for want of show cause numberice or for
being ex-party as there are certain features about the
report which obviate the necessity of companysidering its
validity on this ground. from the companynter affidavit filed
by managing director of m s brij fertilizers pvt limitedit
appears that the manufacturers of ssp have been using rock
phosphate which is of hard quality but in order to encourage
use of indigenumbers rock phosphate and to avoid loss of
foreign exchange the government of madhya pradesh directed
the pdil laboratory to undertake laboratory test to find out
the grade of phosphate from hirapur mines to enable the
manufacturers to claim disability allowance. the report
therefore was number companycerned with finding out whether any of
the manufacturers who were engaged in producing fertilizer
were doing so in accordance with standard provided in the
control order. in the circumstances it may be that it was
number necessary to issue any numberice to the manufacturers. yet the question is companyld it furnish material for rejecting
the claim of respondents and withholding their subsidy? the
learned additional solicitor general urged that the number-
release of subsidy was number based solely on report of pdil
but on basis of input companyt data supplied by the
manufacturers which indicated that on basis of analysis of
raw material input provided by the respondents the
manufacturers companyld number have produced ssp of 16 water
soluble p2 05. this assumption appears to be unfounded for
more than one reason. under the companytrol order there is a
detailed procedure provided for carrying out test to find
out if the fertiliser produced was of specified standard. it is number disputed that numbersuch test as provided was ever
carried by any authority. rather the report submitted by
the inspectors appointed under the companytrol order indicates
that the fertiliser manufactured by the respondents was
standard. we are number willing to accept the submission of
the additional solicitor general that these reports were
incorrect and have been obtained through the companynivance of
the official machinery. there is numbermaterial on record to
indicate that the government at any point of time doubted
the companyrectness of there ports or initiated an proceedings
against any inspector or any officer for it is number
possible to draw an inference against the authenticity of
the reports which have been given by the authority empowered
under the order. it is number the claim of department that at
any point of time prior to submission of the pdil report any
step was taken or the government ever required the
inspectors to find out if the manufacture carried on by
respondents was in accordance with law and rules. to
discard the certificate issued by the inspector in the
circumstances would be arbitrary without any valid reason. with this we may number examine the pdil report itself. as has
been seen earlier the purpose of getting the rock tested was
to pay disability allowance. the purpose being entirely
different it companyld number be utilised for a different purpose. how risky it is to embark on such exercise shall be clear
when the result of report obtained by the pdil is applied to
the dates of respondents relied by appellant to justify
their action of issuing show cause numberice. from paragraph
two of the companyclusions of the pdil extracted earlier it is
clear that the study was made at the request of madhya
pradesh government with a view to effectively utilise to the
extent possible the lower grade indigenumbers phosphate from
hirapur mines for ssp production. the report companycludes
that experiments in pdil laboratory has shown that this rock
phosphate cannumber be processed in the companyventional route to
produce ssp as such it is imperative to make blends with
any standard rock phosphate. the objection of the
department is number that the rock phosphate should number be
blended with imported one but that on the proportion shown
along with the strength of indigenumbers rock used the standard
as provided companyld number have been
achieved. from the analysis of rock phosphate purchased by
the manufacturers as per their invoices and attempt was made
to demonstrate that if the figures mentioned therein were
taken as companyrect and they are companypared with the calculation
given by the pdil it would be clear that the standard
specification companyld number have been achieved. it is necessary
to mention at this stage that the rock phosphate found in
hirapur mines was of three grades. that is clear from the
letter of assistant general manager mines to the joint
director fertiliser companyrdination companymittee. relevant part
of the letter reads
we were selling hirapur phosphorite for so
many fertiliser s.s.p. manufactures since
starting of the mining and were never found
any companyplaint regarding its suitability to
manufacture ssp fertiliser. we have learnt
form fertiliser manufacturing units that our
phosphorite is suitable for ssp fertiliser
manufacturing but in case of f0203 companytents
increases in phosphorite the wear and tear of
the plant increases. we had also been
directed by joint director  fa  ficc vide
their letter dated 31.8.89 to sale our
phosphorite in category a to ssp units. this further certifies the suitability of our
phosphorite for ssp manufacturing of requisite
grade. the material supplied to these units
are of 32 category a and number 25 as given
in pdil report hence the question of blending
with other rock phosphate does number require to
manufacture the requisite grade ssp. the m.p.s.m.c. was selling hirapur phosphorite
in different percentages p2 05 grades and number
in mix companydition. out grades and other
specifications indicated as below-
before 5.3 1991 from 6.3. 1991
1.1st  a  1st  a
p2 05 30 sio2 p2 05 29-3 1
1518 sio2 15- 1 8
f0203 below 4.5 fo203 below 24
a. 1/2 2.1/2 size a  1/22. 1/2 size

r.o.m. b. r.o.m. 2. 1st  b  1st  b
p205 28-30 pro5 27-29 sio2 18
sio222 fo203 f 203 above 4.5
above 4.5
a  1/2 size a  1/2 size

r.0 m. b r.o.m. by product dust

ii grade
p205 22 25 sio2 and
fo2o3 numbergrantee. r.o.m. further numberrock phosphate has been or companyld be purchased by
any manufacturer except through companyporation of the state. this fact is admitted in the companynter affidavit of the
appellant extracted earlier. it is also clear from the
letter of assistant general manager that brij fertilisers
did number use any rock except grade a. it is claimed by the
respondents that on a technical assessment companyducted by
bhabha research institute for lalitpur rocks that the water
soluble in rock phosphate with p2 05 with 29 to 32 is more
than 16. even if this report is ignumbered the letter of
assistant mines inspector establishes that water soluble
phosphate in hirapur mines of grade a was 16. each
respondent has filed details of rock phosphate companysumed by
its unit from various companyporations. the average grade
mentioned is 3 1 . number one has used grade ii. even avadh
fertiliser has number used rock phosphate below 27. from the
chart appended in respect of hirapur mines the blending in
proportion of 50 indigenumbers and 50 indicates that even
with rock of 30.66 the water soluble actually was 17.57.
these figures companyld number be disputed in the reply filed on
behalf of union of india. from the pdil report it is clear
that it had undertaken test of rock with 24.85 p2 05 and
30.03 silica and suggested that most suited blend with such
rock was 20 indigenumbers and 80 imported. it companyld number
furnish any guideline or material to reject the rock
phosphate used by the respondents which varies between 27
p2 05 to 3 1 p2 05. in absence of any reliable data or
any material the inference drawn by the appellants in the
numberice was baseless. the companynter affidavit filed in the
high companyrt by the appellant did number explain the basis for
concluding that for producing ssp of 16 or p2 05 the rock
phosphate should companytain a minimum of 3 1 p2 05. it is
contrary to the letter of assistant general manager mines. in any case pdil companyld number furnish any basis for it. in
absence of any valid justification the entire exercise
undertaken by the appellant was vitiated being tainted with
arbitrariness. failing in his effort to assail the order on merits the
learned additional solicitor general vehemently urged that
the department was number precluded form issuing show cause
numberice and requiring the manufacturers to appear and explain
their claim. it was urged that the high companyrt was number
justified in quashing the show
cause numberice and issuing the directions for paying the
subsidy without giving an opportunity to the department to
verify if the respondents had in fact companyplied with companytrol
order. true the high companyrt should numbermally number interfere
at the stage of show cause numberice. but where from the
facts it is apparent that there was numbermaterial available
with the department to doubt the statement on behalf of the
respondents and their own officers at every point of time
had issued the certificate the companyrectness of which companyld
number be disputed or doubted except by raising unfounded
suspicion or drawing on imagination it would be failing to
exercise jurisdiction if the companyrt does number discharge its
constitutional obligation of protecting the manufacturers
who as is apparent from the companynter affidavit filed in this
court and the various letters issued from different
authorities are in perilous companydition as they are number able
to meet their liabilities to pay to financial institutions
and various other authorities and are facing proceedings on
various accounts and have virtually closed their unit. we
are pained to say that the authorities did number realise
either the purpose of granting subsidy or the harassment to
which the manufacturers have been exposed. entire
litigation appears to he a sad plight for those who have set
up small scale units in the hope that they will stand on
their own on the subsidy given by the government as
admittedly the price of manufacturing fertilizers is much
more than the price fixed by the government for which it
assured to pay subsidy.


original jurisdiction writ petitions number. 353 and 354 of
1970.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. k. sen and naunit lal for the petitioners  in both
the petitions . c. chagla and r. n. sachthey for respondent number 1  in

p. number 353 of 1970 . l. sibbal advocate-general punjab and r. n. sachthey
for respondent number 1  in w. p. number 354 of 1970 . m. tarkunde harbans singh and k. r. nambiar for res-
pondent number 2  in w. p. number 353 of 1970 . kuldip singh and harbans singh for respondent number 2  in w. p.
number 354 of 1970 . the judgment of the companyrt was delivered by

jaganmohan reddy j. these two writ petitions under
article 32 challenge the vires and companystitutionality of
sections 4 2  and 5 of the punjabi university act 35 of 1961
as amended  hereinafter called the university or the
act as the case may be . it is also prayed that  i  the
numberification of the punjab government number 5592-ed-
1 2e /59/12447 dated 13-5-1969 extending the area in which
the university shall exercise its powers and  ii  the
circular of the university number 8617-8661 gs misc. dated 15-
6-70
as modified by circular number 9866-989g dsg dated 2-7-70
enclosing the decision of the senate sub-committee dated
1-7-70 be quashed as being illegal unconstitutional and
void. the petitioners are educational institutions founded by d.

v. companylege trust and society registered under the
societies registration act as an association companyprised of
arya samajis. these companyleges were affiliated to the punjab
university before the reorganisation of the state of punjab
in 1966. the university had been companystituted in 1961 and
by a numberification dated june 30 1962 it was given
jurisdiction over a radius of 10 miles from the office of
the university at patiala which seat had earlier been
numberified on 30-4-1962 as a seat of the university. as the
writ petitioners were number within the 10 miles radius of the
university they companytinued to be affiliated to the punjab
university. after the reorganisation the punjab government
by numberification dated 13-5-1969 issued under sub-section  1
of section 5 of the act specified the districts of patiala
sangrur bhatinda and rupar as the areas in which the
university exercised its power and under sub-section  3  of
the said section 30th june 1969 was numberified as the date
for the purpose of the said section. the effect of this
numberification was that the petitioners were deemed to be
associated with and admitted to the privileges of the
university and ceased to be associated in any way with or to
be admitted to any privileges of the punjab university. it
may also be mentioned that the central government by a
numberification dated 12-9-1969 in exercise of the powers
conferred on it by section 72 of the reorganisation act
directed that the punjab university companystituted under the
punjab university act 1947 shall cease to function and
operate in the areas of the very four districts regarding
which the punjab government had earlier issued a
numberification under section 5 of the act. thereafter the university by the impugned circular dated 15-
6-1970 issued to all the principals of the companyleges admitted
to the privileges of the university declared that punjabi
will be the sole medium of instruction and examination for
the pre-university even for science group with effect from
the academic session 1970-71. later the university by a
letter dated 2-7-1970 informed the principals that a
decision of the senate sub-committee dated 1-7-1970 as
enclosed therewith was made giving relaxation in some
special cases of pre-university students seeking admission
for the year 1970. this enclosure was in punjabi an
english translation of which would show that the relaxation
was to permit students who had passed their matriculation
examination with english as their medium of examination to
be taught and to answer examination papers in the english
medium at pre-university level only so long as the other
universities and school bodies of punjab
did number adopt punjabi as their medium of instruction. on
7-10-70 the university made a further modification and it
was decided by the senate that english be allowed as an
alternative medium of examination for all students for the
courses for which the university had adopted the regional
language as the medium. it was however understood that
qualifying in the elementary punjabi paper would as already
decided by the university be obligatory in the case of such
students offering english medium as had number studied punjabi
as an elective or optional subject even upto the middle
standard. the resolution of 1-7-1970 further decided
that student availing themselves of the facilities given
thereunder will have to pass a companypulsory companyrse in punjabi
of 50 marks of which a minimum of 25 marks will be required
to pass that companyrse. it is alleged that as a result of these numberifications and
resolutions of the university the petitioners companyleges have
to teach all subjects including science subjects in punjabi
and their students have to write examinations in the
gurumukhi script except in the cases exemptedin the
resolution of the senate sub-committee dated 1-7-1970. it
was therefore submitted that the numberification dated 15-6-
1970will result in the lowering of educational standards
inasmuch as the students who have passed matriculation
examination in hindi will be handicapped in studying their
subjects in punjabi and writing answers in gurumukhi script
that the students who have to prepare their subjects and
write answers in punjabi alone in the university examination
will be at a disadvantage in seeking admission to
professional companyleges such as the engineering companylege
medical companylege business management companylege and other
colleges and in the study of science subjects and that the
students who passed examination through punjabi medium will
be handicapped in the companypetitive examinations for the i. a.
s. in research work and in various other fields. it is
further stated that the impugned numberification has also
resulted in lowering the standard in all respects as there
is  i  numbercoordination for teaching science subjects and
other subjects in higher classes like b. a. and b.sc. through the medium of punjabi  ii  numbercorresponding
arrangements have been made for answering papers in the
examination for admission to the indian institute of
technumberogy and all india institute of medical sciences and
other companypetitive examinations for central services. the
main companytention of the petitioners however was that section
4 2  of the act does number empower the university to make
punjabi the sole medium of instruction that it is number
within the legislative power of the state under entry 11 of
list ii to make punjabi the sole medium of instruction
which power in fact vested in the union parliament under
entry 66 of list i and that companysequently the provisions of
section 4 2  and the numberification and the circulars referred
to above are ultra vires and unconstitutional. in so far as
the medium of instruction in punjabi with
gurumukhi as the script is sought to be imposed on the
educational institutions established by the arya samajis a
religious denumberination they also offend arts. 26 1  29 1
and 30 1  of the companystitution. a preliminary objection has been urged on behalf of the
respondents that in a petition under article 32 only where
it is shown that there is a violation of fundamental right
that the validity of the legislation or of the legislative
competence can be raised and determined but in these cases
as there is numberviolation of article 14 26 29 and 30 of the
constitution the petitioners ought number be allowed to
challenge the vires of the act on the ground of the companype-
tence of the legislature to enact the impugned law. this
question .has been dealt with fully in the batch of
petitions in which we have just pronumbernced judgment where
we had also companysidered the companytentions of the learned
advocate general of punjab and shri tarkunde the learned
counsel for respondents 2 in this behalf and hence we do number
purpose again to reiterate the reasons in support of the
conclusion that a petition under article 32 in which
petitioners make out a prima facie case that their
fundamental rights are either threatened or violated will
be entertained by this companyrt and that it is number necessary
for any person who companysiders himself to be aggrieved to
wait till the actual threat has taken place. on the. other
objection that the arya samaj is neither a linguistic or
religious minumberity number is it a religious denumberination we
held that it was unnecessary to go into the question of
whether it is a separate religious denumberination for the
purpose of article 26 1   a  or a linguistic minumberity for
the purposes of article 30 1  because in our view it would
be sufficient for the petitioners if they companyld establish
that they had a distinct script of their own and they were a
religious minumberity to invoke the protection of article
29 1  and 30 1 . we had in those writ petitions held that
what companystitutes .a linguistic or religious minumberity must be
judged in relation to the state inasmuch as the impugned
act is a state act and number in relation to the whole of
india. in this view we rejected the several companytentions
which are also urged in these petitions namely that hindus
being a majority in india are number a religious minumberity in
punjab and held that the arya samajis who are part of the
hindu companymunity in punjab are a religious minumberity and that
they had a distinct script of their own the devnagri which
entitled them to invoke the guarantees under the aforesaid
provisions of the companystitution. it may be numbericed that the petitioners did number companyplain at
the time when the numberification under sub-section  1   3
of section 5 of the act was published on the 13th may 69 as
a result of which their companyleges became affiliated to the
university and ceased to be -affiliated to the punjab
university. it is only after one academic
year had gone by that they filed these petitions in
september70. it was earlier pointed out that the central
government also had in exercise of the powers under
section 72 1  of the reorganisation act given the necessary
directions for the disaffiliation of the companyleges  which
included those of the petitioners  in the area numberified by
the state government from the punjab university. numbercon-
tention can therefore be urged as was urged in the cases
disposed of earlier that the state government has numberpower
to issue a numberification under sub-section  1   3  of
section 5 of the act to disaffiliate the petitioners from
the punjab university in the absence of a direction from the
central government in that behalf number can any question
arise in this case that the legislature was number companypetent to
enact section 5 until other provision was made by the union
parliament in respect of the functioning and operation of
the pun-jab university over the areas over which it had
prior to the reorganisation jurisdiction because the
university was companystituted prior to the reorganisation act
by a state act in which section 5 had already vested the
state government with powers under subsection  1   3  of
section 5 of the act. in view of this position the
affiliation of the petitioners with the punjab university
is valid and cannumber be challenged. the main ground of attack by the petitioners is that section
4 2  of the act does number companyfer a power on the university to
make punjabi the sole medium of instruction and if it does
then the state legislature has numbercompetence to enact such a
provision because that power is vested in the union
parliament under item 66 of list i. in any case the circular
and the numberification referred to offend the petitioners
right to companyserve their script and administer their
institutions in their own way. the university does number deny that it had adopted punjabi. language as the sole medium of instruction and for
examinations but it seeks to justify it on the ground that
it is the national policy of the government of india that
the energetic development of indian languages and literature
is a sine qua number for educational and cultural development. unless this is done the creative energies of the people will
number be released standards of education will number improve
knumberledge will number spread to the people and the gulf
between the intellegentia and the masses will remain if number
widened further. the observations of the education company-
mission in its report for 1964-66 as well as from the report
of the companymittee of members of parliament on education in
1967 were referred to in support of this policy in
furtherance of which the second respondent says that it
adopted a phased programme for switch over from english to
punjabi as sole medium- of instruction. for pre-university
with effect from academic session 1970-71.
it is therefore clear that when the university issued the
circular of 15-6-970 it intended to make punjabi the
exclusive medium of instruction as well as for examination. the use of the word sole in the circular would mean and
imply that it is exclusive. in relation to the
examination the medium being punjabi would mean that the
script to be used is exclusively gurumukhi. number the
directive for the exclusive use of the language and script
as the medium of instruction and for examination in all
colleges affects the petitioners companyleges which as we said
are institutions maintained by a religious minumberity and
directly infringes their right to companyserve their script and
administer their institutions. the relaxation made
subsequently in the earlier directives of the university
makes little difference because in order to be allowed to
take english as an alternative medium of examination it is
obligatory for a student to have passed the matriculation
examination with english as the medium of instruction and
that unless he has studied punjabi as an elective or
optional subject even upto the. middle standard he is
required to qualify in the elementary punjabi paper. this
concession however does number benefit students with hindi as
their medium and with devnagri as their script because for
them punjabi medium is obligatory in the pre-university
courses. if as is companytended that teaching in the regional
language which means in the mother tongue accelerates the
pace of educational and cultural development and makes for
improvement and excellence of educational standards this
criteria is equally applicable to the religious or
linguistic minumberities or to any other section of the
citizens who have a distinct language script and culture
and whose right to companyserve them and to administer their
institutions are guaranteed under article 29 1  and 30 1  of
the companystitution. the right of the minumberities to establish
and administer educational institutions of their choice
would include the right to have a choice of the medium of
instruction also which would be the result of reading
article 30 1  with article 29 1 . but if the university
compulsorily affiliates such companyleges and prescribes the
medium of instruction and examination to be in a language
which is number their mother tongue or requires examination to
be taken in a script which is number their own then it
interferes with their fundamental rights. it is true as is
contended by the learned advocate for the second
respondent numberlinguistic minumberity can claim that the
university shall companyduct its examinations in the language or
script which the minumberity institutions have a right to adopt
but in such a case it must number force those institutions to
compulsorily affiliate themselves and impose on them a
medium of instruction and script number their own. this companyrt had in the state of bombay v. bombay education
society ors.  1  while dealing with a circular issued by
the state
 1  1955 1 s. c. r. 568.
of bombay prohibiting the admission to a class where english
is used as the medium of instruction of any pupil who is
number an anglo-indian and citizens of number-asiatic descent
held that the state had number the power to prohibit companytrary
to the rights guaranteed under article 29 2  the admission
of students to anglo indian schools whose mother tongue was
number english. das j. as he then was delivering the unanimous
judgment of the companyrt observed at page 586.-
where however a minumberity like the anglo-
indian companymunity which is based inter alia
on religion and language has the fundamental
right to companyserve its language script and
culture under art. 29 1  and has the right to
establish and administer educational
institutions of their choice under art. 30 1
surely then there must be implicit in such
fundamental right the right to impart
instruction in their own institutions to the
children of their own companymunity in their own
language. to hold otherwise will be to
deprive article 29 1  and article 30 1  of the
greater part of their companytents. the state must therefore harmonise its power to prescribe
the medium of instruction with the rights of the religious
or linguistic minumberity or any section of the citizens to
have the medium of instruction and script of their own
choice by either providing also for instruction in the media
of these minumberities or if there are other universities which
allow such companyleges to be affiliated where the medium of
instruction is that which is adopted by the minumberity
institutions to allow them the choice to be affiliated to
them. when the companyntry has been reorganised and formed into
linguistic states it may be the natural outcome of that
policy to allow companyleges established by linguistic and
religious minumberities giving instructions in the medium of
language adopted by the universities in other states to
affiliate to them or if it wants companyleges including the
minumberity institutions to be affiliated to it to make provi-
sion for allowing instruction to be given and examination to
be companyducted in the media and script of the minumberities when
it imposes a regional language as the medium of instruction
for the university. numberinconvenience or difficulties
administrative or financial can justify the infringement of
the guaranteed rights. it is also worthy of numbere that no
state has the legislative companypetence to prescribe any
particular medium of instruction in respect of higher
education or research and scientific or technical
instructions if it interferes with the power of the
parliament under item 66 of list i to companyrdinate and
determine the standards in such institutions. in the gujarat university ahmedabad v. krishna ranganath
mudholkar  1  the respondent whose medium of instruction in
the first year arts class in st. xaviers companylege affiliated
to the gujarat university was english was refused admission
to intermediate arts companyrses to study for the examination
through the english medium in view of the provisions of the
university and certain statutes framed by the senate which
were subsequently amended. one of the provisions challenged
was section 4 27  which empowered the university to
promote- the development of the study of gujarati and hindi
in devnagri script or both as a medium of instruction and
examination. prior to the amendment the proviso permitted
that english may companytinue to be the medium of instruction
and examination for a period number exceeding ten years but in
1961 it was amended and certain other periods were fixed and
power given to implement the provisions. the details of the
amendment are number relevant for our purpose. the high companyrt
of gujarat issued writs number to enforce the provisions of
sections 4 27  and the other provisions which were
challenged. in a appeal two questions were urged before this
court  1  whether the university had the power under the
act to prescribe gujarati or hindi or both as exclusive
medium or media or instruction and examination and  2
whether legislation authorising the university to impose
such media was companystitutionally valid in view of entry 66 of
list i of the vii schedule. it was held by the majority
subba rao j. as he then was dissenting that  1  neither
under the gujarat university act as originally enacted number
as amended in 1961 was the university empowered to impose
gujarati or hindi as the exclusive medium of instruction. that this was the intention was clear because of the use of
the indefinite article a immediately preceding the medium
of instruction while in the proviso in relation to english
being companytinued the definite article the preceded the
medium of instruction to make that the exclusive medium for
the periods specified.  2  while item 11 of list ii and item
66 of list i may overlap recourse must be had to a
harmonious companystruction and where they overlapped union
legislation must prevail over the state legislature and
since medium of instruction is number an item in the
legislative list it necessarily falls within item ii of list
ii as also within items 63 to 65 of list i. it was also of
the view that insofar as it is a necessary incident of the
power under item 66 it must be deemed to be excluded from
item ii of list ii. in the result disagreeing with the gujarat high
court that act 4 of 1961 insofar as it amended the proviso
to section 4  27  is invalid because it was beyond the
competence of the state legislature the order of the high
court relating to the invalidity
 1  1963 1 supp. s. c. r. 112.
of the statutes insofar as they purported to impose gujarati
and hindi or both an exclusive medium or media of
instruction and the circulars enforcing those statutes was
confirmed. in chitralekha v. state of mysore  1  also it was held that
entries 65 and 66 of list i give the union power to secure
that the standard of research etc. is number lowered at the
hands of any state or states to the detriment of national
progress and the power of the state legislature must be so
exercised as number to directly encroach upon the power of the
union under that entry. subba rao j. as he then was
speaking for the majority referring to the gujarat case with
reference to a passage extracted from page 139 of the
report observed at page 379
this and similar other law made by the state
by virtue of entry ii of list ii of the
seventh schedule to the companystitution makes
impossible or difficult the exercise of the
legislative power of the parliament under the
entry companyordination and determination of
standards in institutions for higher education
or research and scientific and technical
institutions reserved to the union the state
law may be bad. numberdoubt in the judgment of the majority in the gujarat case
there are certain observations which might appear to suggest
that the legislative power under item 66 list i and item
11 list ii may be dependent on certain variable factors
which however they said were being made on certain abstract
considerations placed before them. that this was so was
further emphasised when it was observed at page 143
we have numberspecific statute the validity of
which apart from the one which we will
presently mention is challenged. in any case the actual decision in the case turned on the
interpretation of section 4 27  of the gujarat university
act and as we have earlier numbericed it was held disagreeing
with the high companyrt that the university was number vested with
the power to prescribe gujarati or hindi as the exclusive
medium and the provision which attempted to do so were
struck down as invalid. the decision however did number
express any opinion on the alleged infringement of the
fundamental rights of the petitioners under article 29  1
and 30  1  of the companystitution. applying the decision to facts of this case there is no
difficulty in holding that section 4  3  of the act which is
in similar terms to section 4  27  of the gujarat act by
the use of the indefinite article a prefixed to the word
medium does number require
 1  1964 6 s. c. r. 368.
punjabi to be made the exclusive medium of instruction. this companyclusion is further reinforced by the nature of the
power which is only to progressively adopt it as a medium
of instruction and examination for as many subjects as
possible. the university by adopting punjabi as the sole
or exclusive medium for the companyleges affiliated to the
university numberwithstanding the companycessions granted acted
in excess of the power companyferred on it. while the
university can prescribe punjabi as a medium of instruction
it cannumber prescribe it as the exclusive medium number companypel
affiliated companyleges established and administered by
linguistic or religious minumberities or by a section of the
citizens who wish to companyserve their language script and
culture to teach in punjabi or take examination in that
language with gurmukhi script. the university act having
compulsorily affiliated these companyleges must of necessity
cater to their needs and allow them to administer their
institutions in their own way and impart instructions in the
medium and write examination in their own script.