Leave granted.
These appeals take exception to the judgment and
order dated 28.05.2021 passed by the High Court of Punjab
& Haryana at Chandigarh in Civil Writ Petition
Nos.7706/2020 (O&M) and 7761/2020(O&M) respectively.
The appellants had assailed the Notification dated
13.04.2018 issued by the appropriate authority in
exercise of powers under Section 87 of Punjab Re-
SignatureorganisationNot Verified Act, 1966, (for short, 'the 1966 Act'), by
Constitution of India.
The High Court has dismissed the said writ
petition(s) opining that the appropriate authority was
competent to issue such Government Order/Notification.
Before this Court, the limited challenge is to
Clauses (a) and (b) of the proviso, which have been
inserted in terms of the impugned Order/Notification by
way of paragraph 6 thereof. Paragraph 6 of the impugned
Order/Notification reads thus:
“6. In section 5, after this proviso shall be
inserted, namely:-
“Provided further that every Unaided
Educational Institution shall-
(a) upload income, expenditure account and
balance sheet on its website;
(b) not charge any kind of cost from the
parents;
(c) disclose complete free structure at the
beginning of the academic year in the
Booklet issued, alongwith the admission
form, by the schools and also be posted in
its website;
(d) not raise the fee any time during the
academic session.”
(emphasis supplied)
In addition, the appellants have questioned the
validity of paragraph 8 of the impugned
Order/Notification, which reads thus:
“8. In section 14:-
(a) in sub-section(1) for the words,
“thirty thousand rupees”, “rupees fifty
thousand” and “rupees one lac”, the words
“sixty thousand rupees”, “one lakh rupees”
and “two lakh rupees” shall respectively be
substituted;
(b) in sub-section(2) for the words, “sixty
thousand rupees”, “rupees one lac”, the
words “one lakh twenty thousand rupees”,
“two lakh rupees” and “four lakh rupees”
shall respectively be substituted.”
We have heard learned counsel for the parties.
The entire issue needs to be answered, keeping in
mind the exposition of this Court in ‘Lachmi Narain vs.
Union of India’ reported in 1976 (2) SCC 953.
The three-Judge Bench of this Court has had an
occasion to deal with the provision similar to Section 87
of the 1966 Act. The expression 'restrictions or
modifications' occurring in Section 871 has been
interpreted by this Court in following words:
“61. ……….. Such a wide construction must be
eschewed lest the very validity of the
1 Section 87 in the Punjab Reorganisation Act, 1966:
87. Power to extend enactments to Chandigarh. The Central Government may, by notification in the Official Gazette, extend with such restrictions or modifications as it thinks fit, to the Union territory of Chandigarh any enactment which is in force in a State at the date of the notification.
section becomes vulnerable on account of the
vice of excessive delegation. Moreover, such
a construction would be repugnant to the
context and the content of the section, read
as a whole, and the statutory limits and
conditions attaching to the exercise of the
power. We must, therefore, confine the scope
of the words "restrictions and modifications"
to alterations of such a character which keep
the inbuilt policy, essence and substance of
the enactment sought to be extended, intact,
and introduce only such peripheral or
insubstantial changes which are appropriate
and necessary to adapt and adjust it to the
local conditions of the Union Territory.“
(emphasis supplied)
The challenge in the present appeals is required to
be decided on the basis of the principles stated in this
judgment.
The question is: whether clause (a) of the third
proviso inserted in terms of paragraph 6 of the impugned
Government Order/Notification dated 13.04.2018 can be
regarded as peripheral or insubstantial change to the
provisions of the Punjab (Regulations of Fees of Unaided
Educational Institutions) Act, 2016 (for short, ‘the 2016
Act’), which have been extended vide impugned
notification issued in exercise of powers under Section
87 of the 1966 Act?
Reverting to the stipulation specified in clause (a),
we have no manner of doubt that the same cannot be
considered as peripheral and insubstantial change. For,
it is a substantive matter. We say so because the
Principal Act (2016 Act), which is extended in terms of
the impugned Government Order/Notification, makes no
provision regarding disclosure of income, expenditure,
account and balance sheet on website of the unaided
schools, including as applicable in the State of Punjab.
It would be a different matter if the Parliament or the
State Legislature, as the case may be, were to
incorporate such condition in the enactment such as the
2016 Act. Had it been so incorporated, it would then be
open to the unaided institutions to question the validity
of such a provision, which could be tested by the
Constitutional Court on the basis of doctrine of
fairness, arbitrariness and other grounds available under
Part III of the Constitution of India or otherwise.
Suffice it to observe that the change introduced vide
the impugned Government Order/Notification in terms of
clause (a) in the third proviso inserted by way of
paragraph 6 thereof, is not a peripheral or insubstantial
change. Hence, it is clearly outside the scope of the
authority bestowed on the competent authority in terms of
Section 87 of the 1966 Act. That stipulation, therefore,
needs to be struck down being ultra vires.
Reverting to clause (b), we find that the challenge
to clause (b), is tenuous. In that, this stipulation
merely prohibits the unaided institutions from charging
any kind of cost from the parents. In our opinion, this
is consistent with the legislative intent and mandate of
the 2016 Act. In fact, it restates the inbuilt policy,
essence and substance of the 2016 Act. Thus, it is in no
way a substantial change as in the case of clause (a),
referred to above. Be it noted that as per clause (c) of
paragraph 6 of the impugned Government Order/Notification
— validity whereof has not been challenged — the unaided
institutions are obliged to disclose complete fee
structure at the beginning of the academic year. The
obligation of the unaided institutions in terms of clause
(b) of the same paragraph is in reference to the
disclosure of fee structure as per clause (c). In other
words, the unaided institutions can charge only the
disclosed fee structure amount from its students and no
further. This provision, therefore, is appropriate and
necessary for better administration of the unaided
institutions to which the 2016 Act gets extended in terms
of the impugned Government Order/Notification.
Accordingly, challenge to clause (b) of the third
proviso inserted by virtue of Government
Order/Notification by way of paragraph 6, cannot be
countenanced and is rejected.
That takes us to the challenge to paragraph 8 of the
impugned Government Order/Notification, whereby the
penalty amount is enhanced in respect of unaided
institutions governed by the 2016 Act within the Union
Territory in terms of impugned Government
Order/Notification. Again, this is not a peripheral or
insubstantial alteration or modification of Section 14.
Inasmuch as, what should be the quantum of penalty amount
or punishment, is a legislative policy. It must be left
to the concerned legislature. It cannot be provided by
way of an executive order, including in exercise of
powers under Section 87 of the 1966 Act — being a
substantial change to the regime predicated in Section 14
of the 2016 Act.
Accordingly, paragraph 8 of the impugned Government
Order/Notification also cannot stand the test of judicial
scrutiny. Hence, the same needs to be struck down being
unconstitutional and ultra vires.
No other issue has been raised before us, including
about the validity of the provisions of the 2016 Act.
Concededly, it has already been recorded in the order
passed on the earlier occasion that the appellants would
be confining their argument to the limited aspects dealt
with in this order.
We make it clear that we may not be understood to
have expressed any opinion either way on the issues that
may have to be dealt with by the High Court in the
pending proceedings relating to the challenge to the
provisions of the 2016 Act.
Lastly, we expunge the observations made against the
writ petitioner in Writ Petition No.7761/2020 (filed
before the High Court), in paragraph 34 of the impugned
judgment.
Accordingly, the appeals are partly allowed in the
above terms.
No orders as to the costs.
Pending application(s), if any, shall stand disposed
of.
Petition(s) for Special Leave to Appeal (C) No(s). 12955/2021
(Arising out of impugned final judgment and order dated 28-05-2021 in CWP No. 7706/2020(O&M) passed by the High Court Of Punjab & Haryana At Chandigarh)
SLP(C) No. 18283/2021 (IV-B) (FOR ADMISSION and I.R. and IA No.144633/2021-EXEMPTION FROM FILING C/C OF THE I/JUDGMENT)
Date : 11-05-2022 These matters were called on for hearing today.
CORAM :
For Petitioner(s) Mr. Avi Singh, Adv.
Mr. Manohar Pratap, Adv.
Mr. Karan Dhalla, Adv.
Mr. Ajit Kumar Ekka, AOR
For Respondent(s) Mr. K. M. Nataraj, ASG
Ms. Swarupama Chaturvedi, Adv.
Mr. Ritwiz Rishabh, Adv.
Mr. Harish Pandey, Adv.
Mr. Raghvendra S. Srivastva, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. Jayant K. Sud, ASG
Ms. Aishwarya Bhati, ASG
Mr. S. K. Singhania, Adv.
Mr. Bhuvan Mishra, Adv.
Mr. Varun Chugh, Adv.
Ms. Swati Ghildiyal, Adv.
Mr. Kartik Jasra, Adv.
Mr. Randeep Sachdeva, Adv.
Ms. Ruchi Kohli, Adv.
Mr. Adit Khorana, Adv.
Ms. Deepa Dutta, Adv.
Ms. Shreya Jain, Adv.
Mr. S. Rustam Singh Chauhan, Adv.
Ms. Deepabali Dutta, Adv.
Ms. Preeti Rani, Adv.
Mr. Gurmeet Singh Makker, AOR
Mr. Chandra Prakash, AOR
Mr. Rajive Bhalla, Adv.
Mr. Sumeir Anuja, Adv.
Mr. Jai Surya Jain, Adv.
Mr. Yajur Bhalla, Adv.
Mr. Deepak Samota, Adv.
Mr. Ashish Vajpayee, Adv.
Mr. Shubham Bhalla, AOR
UPON hearing the counsel the Court made the following
Application (I.A.No.148449/2021) for intervention is rejected.
The appeals are partly allowed in terms of signed reportable
order.
Pending application(s), if any, shall stand disposed of.
(Signed reportable order is placed on the file)