ORDER
Susanta Chaterjee, J.
1.As suggested and agreed by the learned lawyers appearing for the respective parties and in view of the similar points of facts and law are involved, this present case is taken up along with C. R. No. 6249(W) of 1979 and C. R. No.6250(W) of 1979. The attention of this Court has been drawn to the order of the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 12249 of 1989 (Gopal Lal Ganguly v. University of Calcutta) dated 12th September, 1982 that the cases pending before the trial Court should be heard expeditiously as far as practicable. It was submitted before this Court by the learned lawyers appearing for the respective parties that in spite of repeated directions, the University Authorities have not filed all the relevant documents for effective adjudication of the matter in dispute. It has been recorded in the order dated 20-11-90 that Miss Nirmala Kumar Chaturbedi learned Advocate appearing for the University of Calcutta felt very much embarrassed as she was not receiving proper instructions from the respondent. She took leave of this Court and retired from the case. The learned Advocates appearing for the University Authorities in other Rules could not keep their commitment to produce the connected records and documents, although, repeated opportunities were given to the respondent authorities. The University Authorities promised to produce the connected records in terms of direction of the Hon'ble Supreme Court also. In view of such circumstances, this Court gave another chance to the University Authorities to enable the Vice-Chancellor or the Registrar of Calcutta University to appear before this Court and to avoid withholding the records from this Court. On 10th of January, 1991 the learned Government Pleader submitted before this Court that he will exercise his good office so that all necessary documents could be filed. In fact, certain documents have been filed by the State respondents on 8-1-91 andthe said documents have been inspected by the learned lawyers of the writ petitioners and by the lawyers of the University Authorities. Another bunch of records has been produced on 10-1-91. For the ends of justice, this Court permitted the State respondents to produce the said documents by recording that there are no further documents. To avoid any controversy, this Court had observed that the wisdom of the learned lawyers will permit them to inspect the records and to assist this Court in the proper perspective to decide the case.
2. It appears that in Civil Rule No. 6246(W) of 1979, the petitioners viz. Dr. Jnanendra Narayan Mukherjee and six others claiming to be the Trustees of the Surendra Nath Group of Institution including Surendra Nath College of Law, Surendra Nath College (Day and Evening), Surendra Nath College for Women and Surendra Nath Primary and Secondary Schools for Boys and separate Schools for Girls have prayed inter alia for a writ of Mandamus to declare that the pretended amendments of the Statutes 93, 100, 100A in pursuance of Section 4 of the Calcutta University (Temporary and Supersession) Act, 1978 along with Section 58 and sub-section (2) of the Calcutta University Act, 1966 is illegal, unconstitutional, void and bad in law. It is stated in detail that at all material times Governing Bodies of the Surendra Nath Group of Colleges came within the purview of Statute 100 of the Calcutta University First Statutes, 1966 in view of the fact that the said College was and is managed by a trust and/or under the scheme laid down by the Hon'ble High Court. It is placed on record that the Schemes sanctioned by this Court, the function and/or management of Surendra Nath Group of Colleges vested in the Surendra Nath College Council which administered the affairs of the Colleges subject to the supreme financial control of the Trustees and in accordance with the terms with the Deed of Trust. It is further placed on record that after Calcutta University Act, 1966 came into force, the Syndicate caused fresh investigation to be held in respect of every College upon notice to them for the purposes of Statute 100 of the Calcutta University FirstStatutes. After due investigation, the Syndicate by its resolution dated 26th June, 1970 recognized and included Surendra Nath College for Women and Surendra Nath College of Commerce which is the same as Surendra Nath Evening College. It is alleged that the University in purporting to supersede the Colleges has been directly supporting the disgruntled teachers and proceeding against Trustees who are all reputed educationists. It is further alleged that the Calcutta University has been attempting to interfere with the management of the said Surendra Nath Group of Colleges by appointment of an Administrator. There is a long list of litigation between the Trustees and the University Authorities. It is highlighted that on or about March, 1978 the Calcutta University (Temporary Supersession) Act, 1978 was passed whereby and whereupon the Calcutta University Council has been constituted superseding the Senate, Syndicate and the Academic Council. By the said Act, the said Calcutta University Council is vested with the powers and duties previously conferred to the Senate, Syndicate and the Academic Council. According to the petitioners, the said impugned amending Statutes was/ were sent to the Vice-Chancellor by the Council for his assent. There is no person holding the office of the Vice-Chancellor and the said pretended amendments were purported to be made in consultation with the Pro-Vice-Chance1lor who under the Act had no power and/or authority to approve the same and/or to give assent as alleged. The text of the pretended amendments incorporated in the Statutes 93, 100 and 100A of the Calcutta University Statutes have been quoted comprehensively. The grievances of the petitioners are that the Calcutta University being the creature of the Calcutta University Act, cannot exercise any power which has not been granted by the said Act either expressed or by necessary implications. The University has no power to withdraw or affect prejudicially their rights and privileges of the already affiliated Institutions, inter alia, to manage the institutions through the Governing Bodies constituted by them and in the premises aforesaid, the pretended application of Statutes 93, 100 and100A in any form or the same is ultra vires, illegal and bad. It is contended that inasmuch as different provisions of the Calcutta University Act, 1966 recognize and maintain rights and privileges enjoyed by previously affiliated Colleges and any attempt that the same by or under the purported Statutes 93, 100, and 100A or amendments thereof would tantamount to interfere and/or deprivation of the said rights and privileges guaranteed under previous University Act and continued by the Calcutta University Act, 1966 and such attempt is unconstitutional, ultra vires and void. It is canvassed with much emphasis that the Calcutta University Council has no power to amend the Calcutta U niversity First Statutes and in any event after the Calcutta University (Temporary Supersession) Act, 1978 came into operation on the conditions laid down in Section 50 of the Calcutta University Act, 1966 has not in fact been fulfilled. It is submitted that in any event, Calcutta University (Temporary Supersession) Act, 1978 converses the powers of both Senate and the Syndicate in one single authority viz. the Council inasmuch as if the Council to make the draft in exercise of the power of the Syndicate and to consider the same in exercise of the powers of the Senate and if it has to send back to itself in exercise of the power of the Senate and resubmit again in exercise of the power of the Syndicate, the procedure would be an absurdity. Developing all these points further, the petitioners have prayed for the reliefs as indicated above on the grounds as set forth in the writ petition itself. The Rule was issued by Sabyasachi Mukherjee J. (As His Lordship then was) on June 11, 1979 and an interim order was made in terms of prayers (f) and (i).
3. The second writ petition has been filed by Ranadeb Chowdhury and 9(nine) others challenging Section 9 of the Calcutta University (Temporary Supersession) Act, 1978 along with Section 58 and sub-section (2) of the Calcutta University Act, 1966 as illegal, unconstitutional, uitra vires and bad in law and for an appropriate Writ of Prohibition to restrain the respondents from giving effect to or acting under or in respect of the pretended amendments and the notice dated 27th April,1979, copies whereof are Annexure 'E' to the said writ petition. The main challenge is that the impugned amending Statute is in excess of jurisdiction and by the said pretended amendments, the Trustees have been denied representations in relation to the management in the Constitution of the Governing Body of the said Trust Colleges as the Statute 93 provides for Donor's representation in the management only. The second Rule was also issued on the self-same date on June 11, 1979 and an interim order was made in terms of prayer (g).
4. The third writ petition has been filed by Dr. Jnanendra Narayan Mukherjee and 10(ten) others for self and on behalf of all Colleges affiliated prior to 18th of September, 1968 including Colleges administered by trust and registered Societies against the University of Calcutta and other Authorities including the State of West Bengal praying inter alia for appropriate writ of Mandamus declaring the pretended amendments of Statutes 93, 100 and 100A in pursuance of Section 4 of the Calcutta University (Temporary Supersession) Act, 1978 along with Section 58 and sub-section (2) of the Calcutta University Act, 1966 as illegal, unconstitutional, ultra vires, void and bad in law and other consequential reliefs to restrain the respondents from giving any effect or further effect to the purported notice dated 27th April, 1979 being Annexure 'D' to the said writ petition on the grounds that the proviso to the Statute 100 A should be struck down as violative of Article 14 of the Constitution inasmuch as there is no reasonable and/or rational basis for affording protection to an educational institution set up by religious body or any Section thereof and denying the same to the educational institutions of long standing repute. It is submitted that the pretended power of nomination conferred on the Vice-Chancellor is illusory and is purely colourable and mala fide read with clause 4 of Statute 100A.
The Rule was issued on 11th June, 1979 along with the interim order in terms of prayer (g).
5.All the aforesaidwrit petitionsarecontested by the respondent Calcutta University Authorities. State has, however, produced certain records in view of the good office exercised by the learned Government Pleader at High Court. In the Affidavit-in-Opposition filed on behalf of the respondents Nos. 1, 3, 4, 5, 6 and 7 sworn by the Registrar of the respondent No. 1 University of Calcutta, it is placed on record that the University of Calcutta does not grant affiliation to any College unless it agrees to fulfil the conditions laid down for such affiliation. Affiliation to Jogesh Chandra Chowdhury College was granted on the specific terms mentioned in the letter dated May, 1965 of the then Registrar of University of Calcutta. It would not appear from the said letter or from the Inspection Report referred in the said letter that Trustees applied for the affiliation in the manner as alleged. Under the provisions for affiliation, as was in force at that material point of time, the University could not also agree to such stipulation if such stipulation was contrary to the University of Calcutta Act, 1951 and the Statutes framed thereunder. The respondents have denied that the proposed Jogesh Chandra Chowdhury College had been established in accordance with any provision of the Trust Deed of 1909 for Surendra Nath Education Trust or there was any scheme approved by the Court for the management of the said College. It is stated further that the Calcutta University Act, 1966 was enacted by the West Bengal Legislature in 1966 and the said Act received the assent of Governor of West Bengal on 1st February, 1966. As it would appear from the said Act the first Section of the said Act came into force immediately with the receipt of the assent of the Governor of West Bengal. In so far as the other provisions of the said Act were concerned those provisions including the Calcutta University First Statutes, 1966, Calcutta First Ordinance, 1966 and the Calcutta University First Regulations, 1966 came into force on September 18, 1968. It has been denied that the College in question had any Deed of Trust or any Scheme approved by the High Court as alleged. The Calcutta University Act, 1966 was enacted, as stated by the West Bengal Legislature to provide for the reorganisation of the University of Calcutta and for certainmatters incidental thereto and connected therewith. The purpose for which the said enactment was made, would appear from the preamble of the said Statute. The enactment was made as it was felt expedient to reconstitute the University of Calcutta to enable it to function more efficiently as University of Calcutta, extending, co-ordinating, controlling, regulating and importing higher education and permitting research. The said Act provided the University of Calcutta that the Authority to control the management and affairs of any of the Colleges affiliated to the said University or recognized by the said University or constituent Colleges of the said University. It is continued that since after coming into force of the said Act and the Statutes, Ordinances, Regulations framed thereunder, the provisions of the said Act as also the Statutes, Regulations and Ordinances framed thereunder became applicable to all affiliated Colleges or Institutions which were continuing as such immediately before the appointed day or were subsequently affiliated to the University under this Act. Jogesh Chowdhury College being already affiliated to the University of Calcutta was an affiliated College within the meaning of the Calcutta University Act, 1966 and therefore, the provisions of the said Act as also the Statutes, Regulations and Ordinances framed under the said Act became applicable to the said College and the management and administration of the said College was required to be carried on in accordance with the provisions of the said Act, Statutes, Regulations and Ordinances. The powers and functions of the Governing Body of the Colleges are allegedly laid down in Statute 93(2)(4) and Statutes 94, 95, 96, 97, 98 and 99 of the said Statutes. In the case of a College managed by a Trust or Registered Society under a Scheme laid down by a competent Court, it was provided in Statute 100(1) that the Constitution of the Governing Body of such College shall be in accordance with the terms and conditions of such Trust, the Articles and Memorandum of Association of such Registered Society or such Scheme. The provisions of Statutes 94 to 99 were equally made applicable to even a Governing Body of a College constitutedunder Statute 100(1) of the said Statutes, The position in respect of the Colleges, after coming into force of the said Act and the Statutes, Regulations, and Ordinances was that the powers and functions of the said Governing Body would be regulated by the provisions of Calcutta University Act, 1966 and the Statutes, Regulations and Ordinances framed thereunder. It is pointed out that Chapter IX of the Calcutta University First Ordinance, 1966 provides the University that the power to take over management of an affiliated College under certain circumstances and to appoint an Administrator superseding the Governing Bodies of the Colleges and the Institutions. The said Chapter IX was and is equally applicable to all affiliated Colleges regardless whether the Governing Body of the said Colleges are constituted under the Statute 93(3) or Statute 100(1) of the Calcutta University First Statutes, 1966. According to the respondents if there arose any occasion on the part of the University while controlling the affairs of a College which power has been vested on the University by the Calcutta University Act, 1966 to take over management of a College by superseding the Governing Body and appointed an Administrator, the University can do so and it has been done in the instant case. It is canvassed that the reasons for amendment of the said Statutes were that the Governing Bodies of affiliated Colleges other than Government Colleges and Government Sponsored Colleges were constituted according to Statute 100 or Statute 93 of the Calcutta University First Statute, 1966 depending on whether a College concerned was run by a Registered Society or not after coming into force of the Calcutta University Act, 1966 and the Calcutta University First Statutes, 1966. It was felt that the Statutes 93 and 100 are not free from ambiguity and during the past years, the same resulted in good deal in confusion and acrimony when the University had to take steps to constitute and reconstitute the Governing Bodies of many Colleges in order to ensure proper academic atmosphere. To avoid such confusion and acrimony and to make the said Statute free from ambiguity, it was thought fit that the Statute should be amended in such a manner that the management of all theaffiliated Colleges other than the Government Colleges and Government Sponsored Colleges is carried on in accordance with an uniform pattern on a rational basis in the best interest of the students, teachers, employees and guardians. With this object in view, the Calcutta University Council in which the powers, duties and functions of the Senate. Syndicate and all other Authorities of the University of Calcutta have been vested under the provisions of the Calcutta University (Temporary Supersession) Act, 1978, considered it necessary to make the said amendment and, accordingly, after due deliberation, passed resolution making the said amendment subject to the concurrence of the Chancellor of the University. After the said resolutions were confirmed in subsequent meeting of the University Council, the same were sent to the Chancellor of the University for his concurrence and the Chancellor has duly given his assent to the said amendment including the insertion of the new Statute 100A in the Calcutta University First Statutes, 1966.
6. It is contended that under the powers conferred upon the University of Calcutta by the Calcutta University Act, 1966 the University of Calcutta had the authority to direct as to how the Governing Body of a College affiliated to the said University would be constituted. Initially, the Calcutta University provided for an exception of the General Rule for constitution of the Governing Bodies under Statute 93(1) in respect of the Colleges managed by any Trust or Registered Society or under scheme laid down by a competent Court. By the present amendment of Statute 100(1), the University of Calcutta, by reason of the circumstances stated hereinbefore, has provided that except in the case of a College managed by any trust or registered society or under a Scheme laid down by a Competent Court and established and administered by a minority whether based on religion or language or by a religious denomination or any section thereof, there shall be uniform principle for constitution of Governing Body of all Colleges affiliated to the University of Calcutta regardless whether the said College is a trust College or not. It is within the competence of the University of Calcutta to make amendment of the said Statute and towithdraw the exemption as was granted previously in respect of all trust Colleges. The amendment of the Statutes were in accordance with the provisions of Section 50(1) read with the provisions of 1978 Act. The jurisdiction of the Court to go into facts of the case and to grant relief to the petitioner as prayed has also been seriously raised.
7. It is argued before this Court that no question of jurisdiction arises. After the Supreme Court judgment as to the hearing by the trial Court as the University Authority submitted before the Supreme Court for sending back the case to the trial Court for hearing the matter on merit. It is also argued that Section 4 of the University Act of 1979 directing temporary takeover and the sub-section (ii) is violatlve of Article 31A(1)(b) read with proviso requiring President's prior assent and the same being not complied with has to be declared as void. The attention of the Court has also been drawn to the principle laid down in the case of Seth Hiralal Patni v. Sri Kalinath reported in : [1962]2SCR747 . Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution have been referred in detail and the development of the pending cases at different stages would indicate that the part of the cause of action arises within the territorial jurisdiction of this Court and there is waiver as to the objection regarding the competence of the trial Court to hear the matter on merit.
8. It is strongly submitted on behalf of the writ petitioners in all the 3(three) cases that 1960 Statute provided full protection to all Trust Managed and Court Settled Institutions. It would appear from :--
'100(1) :
In the case of a College managed by any Trust, or Registered Society or under scheme laid down by Competent Court, the constitution of the Governing Body, shall, in so far as the terms and conditions of such Trust, Articles and Memorandum of Association of such Registered Society or such Scheme as the case may be, so requiring, continue as such.
Provided that after the commencement of these Statutes, the terms and conditions of any such Trust, the Articles and Memorandum of Association of any such Society or any such scheme shall require the approval of the Syndicate before such Trust is created, such Society is registered or such scheme is submitted to the Court.
9. It is further submitted that the provisions of Statutes 94 to 99 shall apply to a College referred in paragraph (1), in so far as such provisions are not inconsistent, as the case may, that the terms and conditions of the Trust, the Articles and Memorandum of Association of the Registered Society or the scheme concerned, it is also pointed out that Temporary Statute introduced after takeover of Surendra Nath Group of Colleges on 17-1-1976, and the same was set by Court by directing making over the administration to the Trustees by 28-9-1978. The present Rule was issued and there is an order of injunction regarding the amendments. 1979 Act was brought into operation on 31-12-1979 and 3(three) Sections were introduced viz. Section 1, Section 2 and Section 59 for introducing a new Statute under the new Act. New Statute was introduced under Section 59 by modifying old Statute in 1966 and the Chancelfor in assenting rejected the Statute 100 with proviso of the Temporary Act and Statute 101A. It is further argued that this new Statute was notified by letter dated 30-11-82 to the University by by the Chancellor and it came into effect on 10-2-83 as per Chancellor's Order after deleting the provision 100 and Statute 101A. It is submitted that again an attempt was made to reintroduce temporary Statute amendments by circulation of the pretended Statute of 13-4-83 and the Chancellor had noted that he is not only an Assenting Authority but can also withhold assent and in fact, he refused for the second time as alleged. It is strongly submitted that the respondent Authorities are withholding papers to show as to the assent by the Chancellor for effective adjudication of the matter in dispute.
10. Certain documents have been produced by the University Authorities and by the State. It is submitted on behalf of thepetitioners that the documents disclosed by the University and the Government fall under 3 Groups :--
(a) Chancellor's consideration, reintroduction of Statute under the Temporary Supersession Act, 1978.
(b) On the expiry of the Temporary Act and introduction of the new Act brought into operation 31st December, 1979, whereby Statute 100 of the old Act, 1966 was refused and brought into operation of Section 59.
(c) All papers relating to further modification by introducing the impugned provision alleged to have been passed on 13th April,1983.
11. The Court's attention is drawn to the Chancellor's order as communicated by Secretary under the Temporary Act being letter dated 3rd February, 1979 cannot relate to the Statute as made on 31st December, 1979. Since new Act of 1979 came into force on 31st December, 1979 by bringing into operation as to Sections 1, 2 and 59, the rest of the field was covered by 1966 Act. The attention of the Court has been drawn to the relevant documents as to the note of Legal Remembrancer made on 17-3-1983 with the proposed amendment of Statute 100 would be invalid inasmuch as it is hit by Article 13(1) of the Constitution. There is also a note by the Secretary to the Chancellor on 7-10-1983 to the extent -- 'I do not, therefore, consider it legally permissible to amend Statutes 2,3, and 8 to 23 as proposed. Statute 100 is not also acceptable because it strikes at the root of constitutional safeguards given to the minorities.' There is, however, a note by the Secretary to the Chancellor on 29-3-1988 as follows :--
'Section 51(2) of the Calcutta University Act stipulates that a Statute shall be presented to the Chancellor for assent and shall come into force being assented to by the Chancellor in consultation with the Minister. A plain reading of the Section appears to indicate that the Chancellor has the inherent power to assent or to withhold assent. It is doubtful whether the Chancellor can communicate his assent to one segment only of the proposal ofthe University while at the same time withholding his assent for the other segments. This is an intricate question on which the considered opinion of L.R. is solicited.'
12. It is argued that in spite of several opportunities, no further records have been produced by the University Authorities and the State and there is no positive document as to the assent given by the Chancellor.
13. It is submitted on behalf of the respondent University Authorities that on 27th February, 1979 a notice was issued to the members of the University Council that the meeting of the Council would be held on 2nd March, 1979 to consider, inter alia, the Agenda with regard to the amendments. On 2nd March, 1979, as Item No. 57 the modifications incorporated by the Chancellor to the University Council's amendments to the Statutes 93(i)(e) and 100 of the Calcutta Univesity First Statute, 1966 and introduction of a new Statute 100A thereto were placed before the Calcutta University Council. It would appear from the records that the Calcutta University Council considered the said modifications suggested by the Chancellor and accepted the same. In the said meeting 3(three) separate resolutions were passed adopting the said modifications to the proposed amendments, and it was further resolved that these were to be sent to the Chancellor for his assent. On 9th March, 1979 resolution was passed (26) affirming the resolution dated 2nd March, 1979 of the Council regarding changes in the Statutes 93, 100 and 100A. From the records produced by the State of West Bengal, it would appear that the then Chancellor T. N. Singh, Governor of West Bengal noted his approval to the file and gave his assent to the proposed amendments to the Calcutta University First Statutes on 7th April, 1979 Thereafter, a letter No. 639-Edn.(U) dated 12th of April, 1979 from the Secretary to he Chancellor by the Registrar of the Calcutta University whereby the Registrar was informed that the Chancellor in consultation with the Minister for Higher Education has been pleased to give his assent to the insertion of a new Statute 100A as also to the amendments to Statutes 93(i)(e) and 100 of the Calcutta University First Statutesas passed by the Calcutta University Council and presented to the Chancellor for his assent under the letter of the University dated 10th/ 16th March, 1979. This letter was placed before the Calcutta University Council on 20th April, 1979 and the same was recorded. It is thus contended that since the assent was given to the proposed amendments, the provisions were properly modified and from the facts as disclosed would communicate clearly that the Calcutta University Council duly applied its mind to the proposed amendments and the Chancellor having given his assent, there is no merit of the allegations of the writ petitioners and the writ petitions should accordingly be dismissed. It is also submitted that there is no ground for challenging the amendments to the Statutes and the consequent notice issued by the Inspector of Colleges for reconstitution of the Governing Bodies.
14. Having heard the learned lawyers of the respective parties in depth and on perusal of the materials on record, this Court finds that a short point has arisen in this case to adjudicate as to whether, there is proper assent of the Chancellor to the proposed amendments to fulfill the essential conditions for giving effect to the proposed amendments and to justify the impugned notice. The second aspect is as to whether the proposed amendments even with the assent of the Chancellor are contrary to and inconsistent with the provisions as guaranteed under Constitution of India to declare that these amendments are illegal, invalid and ultra vires.
15. In fact, the writ petitioners have challenged a notice dated 27th April, 1979 issued by the Inspector of Colleges whereby the Secretary of Jogesh Chowdhury College situate at No. 30, Prince Anwar Shah Road and 1 A, Indrani Park, Calcutta was required to take necessary steps to constitute/ reconstitute the Governing Body of the College in accordance with the amended Statutes 93(1) and 100 and the insertion of a new Statute 100A of the Calcutta University First Statute.
16. At the time, when the said writ petitions were moved, the Calcutta UniversityAct, 1979 (West Bengal Act XXXVIII of 1979) had not come into force. Under the Calcutta University Act, 1966 the First Statute 1966 were framed which came into force on or about 18th September, 1968. Section 58 of the Calcutta University Act, 1966 invested the University with the power to frame the First Statutes. Section 50(1) laid down the procedure for amendment of the Statutes. According to the writ petitioners, Section 50(1)of the Calcutta University Act, 1966 provided that for the purpose of amendment of the First Statutes, both Senate and Syndicate would have to apply their minds and consider the proposed amendments before the same could be presented to the Chancellor for his assent. By the Calcutta University (Temporary Supersession) Act, 1978 (West Bengal Act VII of 1978), the University of Calcutta was superseded, and as a consequence of supersession, with effect from the date of coming into force of the said Act or members, inter alia, of the Senate and the Syndicate vacating their respective offices and all powers and duties assigned to the said Bodies and the other Authorities of the University under the Act or the Statute became exercisable by the Calcutta University Council, which was formed under the Supersession Act. The powers of amendment conferred on the Calcutta University Council for amendment of the First Statutes could not be properly exercised, as the procedure laid down in Section 50 of the Calcutta University Act, 1966 could not be followed, since the Bodies like the Senate, Syndicate and the Academic Council were no longer in existence and consequently, if the powers of the Senate and Syndicate under Section 50 are held to have conferred in the Calcutta University Council then such powers would amount to unguided, uncontrolled uncanalized and arbitrary powers to make subordinate legislation. The grievance is that the amendments of the First Statutes in particular of Statutes 93 and 100 thereof, and insertion of 100A therein are ultra vires, illegal and beyond the powers of the authority contained in the said Act. Accordingly, the notice dated 27th April, 1979 issued by the Inspector of Colleges requiring the Secretary of the said College toconstitute, reconstitute of the Governing Body in terms of the said amended provisions of the First Statute was illegal and bad in law.
17. By an amendment, the writ petition was amended and the prayers of the writ petitioners have been modified to the extent that the writ petitioners not only challenged the amendments of the Statutes 93, 100 and 100A in pursuance of Section 4 of the Calcutta University (Temporary Supersession) Act, 1978 but also under Section 59(2) of the Calcutta University Act as illegal, unconstitutional, ultra vires, void and bad in law. By the subsequent notice dated 13th of April, 1983 the Univesity of Calcutta through the Inspector of Colleges called upon the principals of all affiliated Colleges other than Government Colleges and Colleges within the ambit of Statute 100 to take necessary action in the matter in terms of the said amended Statutes.
18. To appreciate the cases of the respective parties, certain dates are relevant :--
(1) On 12th January, 1978, the Calcutta University (Temporary Supersession) Ordinance, 1978 came into force.
(2) 27th March, 1978, the Ordinance became an Act and the Calcutta University (Temporary Supersession) Aci, 1978 came into force.
(3) On 21st September, 1978, the proposal of the Pro-Vice-Chancellor for Academic Affairs for amendment of Statutes 93 and 100 and insertion of Statute 100A was placed before the Calcutta University Council.
(4) On 25th September, 1978, the special meeting of the Council was held approving the proposed amendments of Statutes 93 and 100, an insertion of Statute 100A.
(5) On 2nd October, 1978 a notice was issued calling a meeting of the Calcutta University Council on 5th of October, 1978.
(6) On 5th October, 1978 a meeting of the Calcutta University Council took place where it was resolved that changes in Statutes 93(1)(e) and 100 of the Calcutta University First Statutes and introduction of a new Statute 100A be adopted.
(7) On 6th October, 1978 the Chanceller suggested certain modifications to the proposed amendments.
(8) On 3rd February, 1979, by a letter written by the Secretary to the Chancellor to the Registrar of Calcutta University by order of the Chancellor, he has been directed to forward the amendments to the Calcutta University First Statutes as assented.
19. There the question arises as to whether there is really any assent or by implications, it would be presumed that there is assent to the proposed amendments. The matter went to the Supreme Court and the University Authorities agreed to produce all the records before the Trial Court for effective adjudication. While the matter was heard by this Trial Court, the learned Counsel for the Calcutta University frankly conceded that they have no original records as to the assent given by the Chancellor. They have allegedly referred to a letter written by the Secretary to the Chancellor and it was submitted that the original records are with the State respondents. At the intervention of the learned Government Pleader at High Court, certain records have been produced after a number of adjournments were given. But unfortunately, no records have been produced which clearly show that the Chancellor actually gave his assent. On the contrary, it transpires from the materials on record that the then Secretary to the Chancellor viz. A. K. Chatterjee on 29-3-88 placed on record that it is doubtful whether the Chancellor can communicate his assent to one segment only of the proposal of the University while at the same time withholding his assent to other segments. This is an intricate question on which the considered opinion of L.R. was solicited. No further records have been produced before this Court as to the opinion of the L.R. after 29-3-1988 or any assent of the Chancellor thereof. The University Authorities have mainly referred to the letter No. 63N-Edn. (U) dated 12th of April, 1979. The note dated 29-3-1988 by the Secretary to the Chancellor cannot be reconciled with the letter No. 63N-Edn. (U) dated 12th April, 1979 and/or any endorsement of the Chancellor on 7-4-79 under flag'K' of the file produced before this Court. Subsequent notes in the file by the Secretary to the Chancellor and the L.R. will prove beyond doubt that the Chancellor has not given assent to the proposed amendment clearly and conclusively, and particularly, in view of the fact that the original record as to the assent given by the Chancellor is not produced either by the University Authorities or by the State respondents.
20. With great anxiety, this Court has considered the submissions made on behalf of the writ petitioners, Calcutta University Authorities and State respondents to find out as to whether the actual assent was given by the Chancellor or not regarding the proposed amendments of the Calcutta University Authorities. Adjournments after adjournments were granted. Repeated opportunities were given and in spite of having the indulgence of the Court to delay the matter beyond the limits, nothing tangible has been produced as to the actual assent of the Chancellor. Non-production of the said relevant records permits the Court to hold an adverse inference in the manner as provided under law. In view of the serious challenges of the writ petitioners, this Court cannot appreciate the argument of the University Authorities that by implication it should be presumed that there is assent given by the Chancellor to the proposed amendments of the Calcutta University Authorities. The Rules were issued as back as on 11th June, 1979. There are interim orders in all the 3(three) pending Rules restraining the University Authorities to give effect to the impugned notices given by the Inspector of Colleges to ask the College Authorities to constitute and re-constitute the Governing Bodies in terms of the amended provisions of law. Against such strong challenges made by the writ petitioners, the records do not show that actually the President gave assent to the proposed amendments and since nothing has been produced before this Court has no other alternative but to hold that there is no assent of the Chancellor to give assent to the proposed amendments and in the absence of the assent of the Chancellor, the proposed amendments cannot be given effect to, Besides; this Court has tried toappreciate the arguments advanced on behalf of the writ petitioners and the University Authorities that there cannot be any discrimination to the Trust Bodies and the schemes framed by the competent Courts for running and administering the Colleges in terms of the Deed of Trust and any attempt to introduce any legislation to take away the rights of the Governing Bodies of the Colleges in the manner as sought to be done by the proposed amendments are contrary to and inconsistent with the guarantee and protection provided by the Constitution of India. Those proposed amendments do not appear to be just and according to law.
21. Since this Court holds that there is no assent to the Chancellor to the proposed amendments of the Calcutta University Authorities, no step can be taken as per the amended Statutes and consequently, the impugned notice by the Inspector of Colleges loses all its force. It is no longer binding upon the petitioners and the same cannot be enforced accordingly.
22. For the foregoing reasons, this Court finds merit to uphold the contention of the writ petitioners and the Rules are made absolute by issuing an appropriate writ commanding the respondents not to give effect to the proposed amendments as indicated in the writ petition and the impugned notice dated 27th April, 1979 is quashed. There will be no order as to costs.
23. Petitions allowed.