STATE OF KERALA, ETC. versus VERY REV. MOTHER PROVINCIAL, ETC.

Citation: [1971] 1 S.C.R. 734 · Decided: 10-08-1970 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 17 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

734 
STATE OF KERALA, ETC. 
v. 
VERY REV. MOTHER PROVINCIAL, ETC. 
August 10, 1970 
[M. HIDAYATCLLAH, C.J., J.C. SHAH, K. S. HEGDE, A. N. GROVER. 
A. N. RAY AND I. D. DUA, JJ.] 
. 
Kera/a University Act 9 of 1969-Ss. 48 49 53 56 58 and 63-
Constitutional validity oj-Constitutinn of J~dia~Ari. 30( 1 )-Scope of 
. The Kerala ~niversity Act 1969 was passed to reorganise the Univer~ 
~1ty of ~era.la \\'Ith a view to establishing a teaching, residential and affiliat-
ing Un1vers1ty for the southern districts of the State of Kcrala. Some of 
its provisions affected private colleges, particularly those founded by n1ino-
rity communities in the State. Their constitutional validity was challengcJ 
by some members of those communities on variou"' grounds in writ peti-
tions filed in the High Court. 
' 
The provisions challenged were 1nainly those contained in Chapters 
VIII & IX of the Act. 
By ss. 48 and 49, an 'Educational Agency' which 
had established and \Vas maintaining a private college or a 'corporate 
n1anagement' V·.'hich \Vas managing more than one private college, \1.:i.:-i·.!' 
required to set up a governing body for a private college or a managin!.! 
council for private colleges under one cor;:>orate n1anagement. 
The Sec: 
tions provided for the composition of the two bodies which were to in-
clude the Principals and managers of the private coll~ges, and nornine..:.;; 
of the University and Government, as well as elected representatives 
of 
teachers. 
Sub-section ( 2) prov id cc. for the new bodies becoming bodies 
corporate having perpetual succession and a common seal. Sub-section ( 4) 
provided that the members \vould hold office for four years and by sub-
section (5) of each secti.on a duty \.1/as cast on the nC,\\' governing body or 
the managing council 'to administer' the private college or colleges in ac-
cordance \Vi th the provisions _of the Act. 
Sub-section ( 6) in each section 
laid down that the powers and functions of the new bodies. the removal oi 
members thereof and the proceclure to be followed by them, shall be 
prescribed by statutes. 
· 
The petitioners challenged the provisions of these two sections as also 
inter a/ia those of (a) sub-sections (I), (2), (3) and (9) of s. 53 which 
conferied on the Syndicate of the UniYersity the power to veto the deci-
sions of the governing council; and a right of appeal to any 
person 
t1ggrieved by their action; (b) s~ction. 56 •. w~i<:h conferred ul_timate po~·e~ 
on the University and the Syndicate m d!Sciphnary matters m respect ot 
teachers: (c) s. 58. which removed membership of the Le~islative ~ssembly 
as a disqualification for teachers; and (d) s.63 (!)-which provic'.ed that 
•Nhenever government was satisfied that a grave situation had arisen in the 
v.·o·rking of a orivate college, it could inter alia, appoint the University tv 
manage the affairs of such private college for a temporary period. II was 
contended that these provisions df the. ne~. Act were !'iolative of ~r.ticle 
30 which protects the rights of the mmonties to establish and administer 
ed~cational institutions of their choice as also Articles 19(1 )(f), and !-l 
of the Constitution. 
A 
B 
c 
D 
E 
F 
G 
H 
A 
8 
c 
D 
E 
F 
G 
H 
KERALA v. MOTHER PROVINCIAL (Hidayatullah, C.J.) 
735 
The High Court allowed the writ petitions and declared some of the 
provisions of the Act invalid. 
On appeal to this Court, 
HELD: The High Court was right in holding that sub-ss. (2) and (4) 
of ss. 48 and 49 are ultra vires Art. 30( I). Sub-section ( 6) of eacb of 
these two sections are also ultra vires : they offend more than the other 
two of which they are a part and parcel. The High Court was also right 
in declaring that sub-ss. (I), (2), (9) and of s. 53. sub-ss. (2) and (4) 
of s. 56, are 11/tra vires as they fall within ss. 48 and 49; that s. 58 (in so 
far as it ren1oves disqualification which . the founders may not hke 
to 
agree to, and s. 63 are ultra vi res Art. 30( 1) in respect of the n1inority 
institutions. [746 E] 
It is obvious that after the erection of the governing body or the inanag-
ing council the founders or even the minoritv con1n1unity had no hand 
in the administration. 
The two bodies are Vested 
\Vith the con1plete 
administration of the institutions and v.1cre not ansv.·erahle to the fo•Jnders 
in this respect. 
Sub-sections ( 2). ( 4). (5) and ( 6) of ss. 48 and 49 
clearly vest the management and ttdministration in the hands of the t\\'O-
hndies v.·ith n1and

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