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The Bihar Reorganisation Act, 2000
The Mines Act, 1952
the Drugs (Control) Act, 1950
Section 7 in The Bihar Reorganisation Act, 2000
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Patna High Court
Brijendra Singh vs State Of Bihar And Ors. on 22 May, 1995
Equivalent citations: 1996 (1) BLJR 82
Author: R Sahay
Bench: R Sahay, P Deb



JUDGMENT
 

R.N. Sahay, J. 

1. The controvesy in this case is whether the activities carried on by the Institution of which the petitioner is the Director can be brought within the mischief of Bihar State Engineering, Pharmacy and Commercial Education (Regulation and Control) Act, 1983 (in short 'the Act') as has been done by the respondent, the Secretary, Science and Technology Bihar by issuing the order as contained in Annexure-13 dated 16-8-1994. Annexure-13 is a letter addressed to the Deputy Commissioner, Ranchi requesting him to take immediate action in the matter of the Bihar Institution of Mining and Mines Surveying Ranchi on the ground the said Institute having not obtained recognition from A.I.T.C.E., New Delhi and the State Government thereby contravened All India Technical Education Act, 1987 and Bihar Act, 1983. The Dy. Commissioner was conveyed the decision of the State Government to lock the Institute and instituted F.I.R. against the founder and Principal of the Institute. A copy of the above letter was also forwarded to the S.P. Ranchi. The authorities swung into action and complied with the direction of the State Government as contained in Annexurc-14.

2. The petitioner being aggrieved by the action of the respondent has moved this Court under Article 22 of the Constitution for the following reliefs:

(1) Quashing of Memo No. 2140 dated 16-8-94 (Annexure- 13).

(2) Quashing the F.I.R. (Annexue-14) lodged by respondent No. 5 with jagannathpur P.S. dated 25.10.94 (J.P. No. 140/94 under Section 419 and 420 I.P.C.) (3) Mandamus to respondent Nos. 3.4, and 5 to unlock the premises of the Institute which has been locked on 25.8.94 by respondent No. 5.

(4) Payment of Compensation to the Petitioner quantified at Rs. 50000/-

3. Bihar Act 63 of 1982 was enacted by the Bihar Legislature with the object for controlling and Regulation the, non-government Engineering Colleges, Polytechnic and Pharmacy College Section 2 of the Act forbids establishment of any institute for imparting of education for grant of degree diploma in Engineering and Pharmacy. The other relevant provisions of the Act shall be referred to at the appropriate place in the judgment.

4. It would be necessary to have an idea of the functioning of the petitioner-Institution in order to resolve the controversy whether the provision of the Act can be made applicable to the petitioner Institute. The Institute is situated at Prem Nagar in the town of Ranchi. It is registered under the Society Registration Act, 1966, and its registration No. is 200/89-90. The Institute was established in 1980 for coaching candidates both the theoritical and practical and prepare them for appearing in examination of Overman, Surveyor and Mining Sirdar conducted by the Board of Mining Examinations Constituted under Regulation 11(1) of Coal Mines Regulations 1957.

5. The Institute has qualified faculty members which include the former Chairman-Cum-Managing Director of Western Coal-fields Ltd. Nagpur. The names of the faculty members of the Institute are:

Sri V.N. Singh Principal, A.I.I.S.M., F.C.C., A.M.I. (Mines, E (U.K.) Ex-Principal Mining Institute, Dhanbad.

1. Shri V.K.Verma, F.C.C, Dy. Chief Mining Engineer (Retd.) BCCL, Dhanbad.

2. Shri Harendra Prasad, F.C.C, Colliery Manager (Retd.) C.C.L. Ranchi.

3. Shri R.N. P. Sinha, F.C.C, Dy. Chief Mining Engineer (Retd.), C.C.L., Ranchi.

 

4. Shri K.N. Dutta, Asstt. Manager (Retd.)
 

5. Shri Irshid Fahim, B.Sc. (Eng) Civil
 6. Shri A.K. Singh, B.Sc. (Eng.) Civil.    (Lecturers.)
7. Dr. P.K.Sinha, Ph. D, (Geography).      (Lecturers.)
 

6. The petitioner states that the students enrolled in the Institute were granted permission to undergo practical training in various Mines under the Control and Management of Subsidieries of M/s. Coallndia Ltd. (A Government of India Undertaking). The institute was also approved as a Centre for Gas Testing Examination conducted by the Director General of Mines, Safety, Government of India under Coal Mines Regulation, 1957 and Metaliferous Mines Regulation 1961. (Annexure-1).

7. It is stated that permission for undergoing underground training for institutes located in and around Ranchi was discussed with the Director (Personnel) on 2.12.92. and a committee was constituted for inspecting four institutes including that of the petitioners. The committee consisted of three General Managers/or their, representatives. The Committee was to submit its report before 31.12.1992 and after verifying the infrastructure facilities like building, rooms, teachings faculty members, laboratory and library. This will appear from letter dated 3.12.93 written by General Manager (Human Resource Development) to the Director (Personel). Thereafter a committee was constituted and petitioner institute was inspected on 2.1.1993, and it was found that the institute was fully equipped and has capacity to coach properly the students of Mining & Mines Surveying (Annexure-3).

8. It is further stated that a decision was taken that the training facility will only be made available to the students of those institute who are in Grade 'A'. On the basis of the inspection, the institute was put in Category-A which will appear from the letter dated 21-12-1993 and 3.11.1993.For the purpose of practical training. It is asserted that the Institute is the only institute in Bihar which has been put in Category-A by the Coal India Ltd. This would become clear from perusal of the letter dated 23.8. 1993 written by the Technical Secretary to the Chairman to the CMD's of the ECL/BCCL/NCL/WCL/SECL/MCL/CMPDIL, has been annexed as Annexure-4 series.

9. Under the Coal Mines Regulation 1957 the Board of Mining examination is constituted which consists of the Director General Mines Safety who is the. ex-officio Chairman and five members possessiong technical qualification in mining. The Board of Mining examination grants certificate under Regulation 12 which reads as follows:

12. Certificate granted by the Board (1) Certificate under these regulations shall be granted by the Board.

(2) Certificates granted by the Board shall be valid through out the territories to which these regulations extend and shall be of the following kinds-,

(a) Manager's First Class Certificate of competency to manage a Coal Mine (in these regulations referred to as a First Class Manager's Certificate).

(b) Manager's Second class certificate of competency to manage a coal mine (in these regulations referred to as a Second class Manager's certificate)

(c) Surveyor's Certificate of competency to survey the workings of a mines (in these regulations referred to as a Surveyor's Certificate)

(d) Overman's Certificate of Competency to carry out inspections and duties as required under these regulations (in these regulations referred to as an Overman's Certificate)

(e) Sirdar's Certificate of Competency to carry out inspection and duties as required under these regulations (in these regulations referred to as a Sirdar's Certificate.

10. Regulations 15,17 and 22 provides for age and general qualification of candidates.

Clauses 2 and 3 of Regulation 15 which is relevant for our purpose read as follows:

2. No. Candidate shall be admitted to the examination unless the produces this authorisation.

3. Every candidate when required by the Secretary of the examination give two clear impressions of his left hand thumb.

11. The Government of India Ministry of Labour conducts examination from time to time for various mines to make them eligible for appearing at the competency certificate examination. A notice published by the Directorate General of Mines Safety for holding of Overman Certificate competency has been annexed as- Annexure-7 to the writ application. Under the Coal Mines Regulation Act, 1957 a candidate who intends to appear at the competency examination of Overman, Surveyor, Mining Sirdar is required to produce certificates of requisite practical training of specified duration from the coal mines. The Institute and other similar institutions requested Coal India Ltd. to allow the trainees to undergo the requisite practical training in different coal mines. On receipt of request the Institute was inspected along with other similar institutes situated at Ranchi and Ramgarh. The Central Coal Fields Ltd. by an office order dated 8.2.93 decided to impart practical training to 60 candidates of the institute every year (Annexure-5).

12. The subsidiaries of Coal India Ltd. namely, Central Coal-fields Ltd., Eastern Coalfields Ltd., Northern Coalfields Ltd., South Eastern Coalfields Ltd. Bharat Coking Coal Ltd. and Tata Iron and Steel Co. Ltd. also agreed to impart practical training in their, mines to the trainees of the Institute (Annexure-6).

13. It is the definite case of the petitioner that the institute prepares the students by way of coaching them in theory and arranging practical training in various mines as stated hereinbefore to make them eligible for appearing at the competency Certificate Examinations held by the Board of Mining Examination, i.e. Directorate General of Mines Safety constituted under Coal Mines Regulation 1957 in which its students appear in their individual capacity. In fact the institute merely helps the students in preparing them for the competency certificate examination. This would become clear from the examination notice dated July 11, 1994 which permits individual candidates for appearing at various competency certificate examinations under Coal Mines Regulations Act, 1957 provided they fulfil the eligibility criteria in terms of the above mentioned regulations. (Annexure-7 has been referred to above).

14. The petitioner's allegation is that some persons having grudge against the petitioner-Institute (because of its status being levelled as Grade 'A") made false and frivolous and malicious complaints against the Institute.

15. Shri Paremeshwar Member Legislative Council raised the question on the floor of the house regarding alleged irregularities in running/establishment of the Institute. The question put by him has been annexed as Annexure-8. Thereafter an enquiry was instituted and Shri M.L. Das, Executive Magistrate, Sadar Ranchi who was entrusted with the enquiry issued notice to the petitioner (Anncxure-90) and directed the petitioner to produce all relevant papers pertaining to the Institute before him for the purpose of enquiry. Shri Das after making enquiry submitted his report to the S.D.O., Ranchi. According to the report of Shri Das the petitioner-Institute was a coaching Institute for imparting training in theory and arranging practical training in different coal mines of different Companies for making candidates eligible for taking the examination held by the Board of Mining Examination. The Executive Magistrate has given a categorical finding that the Institute had not violated any provision of the Regulation and Control Act and therefore no permission was required to be obtained from the State Government as no certificate or diploma is granted by the Institute. The examination is conducted by the Director of Mines Safety. The Institute has a well equipped laboratory and library. There is provision of coaching of mining Sirdar Overman, Surveyor and training in the Mines of Coal India. The Institute does not take the responsibility for obtaining certificate. The report is annexed as Annexure-10. The report is fair and in nutshell depicts the actual working of the Institute.

16. It is asserted on behalf of the petitioner that the Institute does not grant any certificate to the trainees nor it is competent to grant any certificate for the purpose of the examination. The certificates/are granted by the Board of Mining Examination conducted under the Regulation Cool Mines Act, 1957. Certificates are distincts from degree/diploma in Engineering. The petitioner has annexed some, certificates issued by the Board of. Mining Examination under the Coal Mines Regulation Act, 1957 (Annexure-12 series). The petitioner sum up its case in para 26 of the writ application:-

26. That from the aforesaid Annexures and the statement of facts stated hereinabove it will appear that the Institute has been established for coaching candidates in theory and arranging practical training in different coal mines to prepare them to appear at different examinations held by the Board of Mining Examinations constituted under Coal Mines Regulation Act, 1957. None of the candidates appeared as student of this Institute. That it is pertinent to state that the Institute is not getting any aid/financial' assistance either from the Government or its agencies. It maintains itself out of the resources generated by itself and pays its faculty members, maintains library, laboratory etc. by itself.

17. Despite the report (Annexure-10) of Shri M.L. Das, Executive Magistrate, on 25.8.1994 the 5th respondent with some other officers came to the premises of the Institute and stated that they had order to seal and lock the premises. They did not produce any order of the above effect claiming it to be confidential. Next morning it was published in the local newspaper that. the Institute had been sealed and locked under the orders of respondent No. 4, for alleged violation of Technical Education. Act. Thereafter 5th respondent sent a letter to the Jagganathpur Police station. alleging that the Management of the Institute was alluring students to donate Rs.13,500/- to the Institute and after giving some training on theory to them they are left at lurch. On the basis of letter a formal F.I.R. (Annexure-14) was drawn up.

18. The respondents in their show cause seek to justify their action by referring to the prospectus and newspaper/cuttings by the petitioner-Institute enclosed as Annexure-C and C/l. On the basis of the prospectus it is urged that the petitioner-Institute has been running the Institute is gross violation of the provision of Bihar State Engineering and Pharmaceuticals Education Institution. (Regulation and Control) Act, 1982. This Act completely prohibits any person to run institute without obtaining prior permission from the State Government in the manner provided in the said Act. The respondents have relied on the decision of this Court in L.N. Mishra Institute v. State of Bihar 1993(2) P.L.J.R 379. This Court after considering the proposition laid down by Supreme Court of India held as under:

As noticed above, if seems to us that quite large number of unapproved/ill-equipped/vague institution are claiming to be authorised to impart B. Pharma Course to cheat and exploit ''noive and foolish, egger and ready to be duped aspirants for admissi'on to professional college course. "In its subsequent decision, looking at the said trained, which seems to have become the order of the day, the Apex Court in the case of Managing Committee of Bhagwan Budh Primary Teachers' Training College v. Stale of Bihar (1990 Supplement Supreme Court Cases 722) that "for issuance of advertisement through newspapers and other possible channels, if any, to ensure that students do not get misled by such unrecognised institution exceeding their precious time and money in under going trained which will be of no avail to them. The Supreme Court also suggest that the State should consider for taking such steps for criminal or civil, as are open to them, in law, to stop such institutions and those who run them for misleading students and receive them.

19. Action against the petitioner was taken also on the basis of a complaint (Annexure-A) made by Raghunath Prasad Verma. There is report of the S.D.O., Ranchi (Annexure-B) severely (sic) the manner the Institution is being run. This report is relevant in considering the question whether the Act is applicable for the petitioner-Institute. Respondents have also annexed a copy of the advertisement published by the petitioner in Hindusthan Samachar dated 24th July 1994 (Annexure-C). The advertisement is quoted below:

Admission Notice Application in the prescribed form are invited for admission to the following courses:

(1) 4 years Mine Foreman/Overman Course ; Eligibility : Minimum Matriculation/H.S. or equivalent passed from a recognised board.

Age: Minimum 171/2 years, Authority of Examination:

Board of Mining Examination, Dhanbad (DGMS Govt. of India).

(2) 3 Years Mine Surveyor's course: Eligibility : Same as in (1) above. Job Opportunity: Chances of immediate absorption after successful completion of the courses.

Special Features(A) Centre for First Aid & Gas Testing Examination in the Campus (approved by D.G.M.S.) Govt. of India) (B) Own building with spacious class rooms, laboratories, library and workshop-cum-production centre (C) Sufficient Hostel Facilities available.

20. The prospectus of the Institute has also been annexed as Annexure-C/1. I have not discovered in the said prospectus any statement to show that the petitioner-Institute has violated the terms of Statute.

21. An intervention application has been filed in behalf of Raj Kumar and his Counsel was also given hearing although we are of the view that he has no locus standi to be added as party. The counsel has relied on Annexure-E which is the order passed in CWJC No. 1610/94(R) in the case of Indian Institute of Mining & Technology and Ors. v. State of Bihar. We shall refer this decision at the appropriate place.

22. Shri Mr. Samrendra Kumar Singh, learned Counsel for the petitioner submitted that from a bare perusal of Annexure-13 it would show that the whole action has been initiated against the petitioner on the basis of the advertisement although there is nothing in the advertisement in the newspaper which is not true. The advertisement is innocous, which is evident from perusal of Annexure-C to the counter affidavit. The advertisement shows that Institute had invited application for admission to course to make the students eligible to appear in the various certificate examinations conducted by the Board of Mining Examination Dhanbad i.e. Directorate General of Mines Safety Government of India. It has been strongly submitted that imparting of education even if it is a technical education is not prohibited by the All India Council of Technical Education Act, 1987 which is clear from the perusal of the observation of the Supreme Court in a case reported in 1993 Vol. 1 SCC 645. The Supreme Court has observed:

It is true that there is no express provision under the Act which says that no Engineering College or any other college or Institute imparting technical education shall be established except with the permission of the council.

23. Learned Counsel submitted that there is nothing in the Bihar Act which prohibit running of an institute of the nature being run by the petitioner which imparts education/arranges practical training for grant of a certificate which is neither a Degree nor Diploma. Learned Counsel reiterated what is stated in page 22 of the writ application read with Annexure-7, Annexure-11 series and Annexure-12 Series.

24. Learned Counsel submitted that it is blatent case of colourable exercise of power devoid of any authority. He relied on (Rupnath v. State of West Bengal) wherein it has been held where power has been conferred to achieve a purpose, power must be exercised reasonably and in good faith to effectuate the purposes and in this context 'in good faith' means 'for legitimate reasons'. Learned Counsel has submitted that there was no allegation in this report that the petitioner-Institute provides three years Diploma course in Engineering.

25. Learned Counsel next contended that even if it be accepted that the some provisions of the Bihar Act have been violated by the publication of advertisement in the newspaper it was incumbent on the respondents to give notice to the petitioner before taking such a drastic action as closure of the Institute and putting lock and seal. The Bihar Act does not provide for issuance of notice before taking action. None the less the Rule of audi atterem is mandatory. Learned Counsel Has relied on the following observations (Swadeshi Cotton Mills Ltd. v. Union of India):

If the statute conferring power is silent with regard to the dealing of a pre-decisional hearing to the person affected by the administrative decision taken by the authority involving civil consequences of a grave nature and no full review or appeal on merits against that decision is provided courts will be extremely reluctant to construe such a statute as excluding duty of affording even a minimal hearing, short of all its. formal trappings and dialatory features at a predecisional stage, unless, viewed pragmatically, it would paralise the administrative processes or frustrate the need for utmost promtitude. In short, these rule of fair play must not be jettisoned, save in very exception circumstances where compulsive necessity so demands the courts must make however to salvage this cardinal rule to the maximum extent possible with circumstantial modifications. But the core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be genuine and not an empty public relation exercise.

26. The ratio laid down in the aforesaid decision was reiterated in the case of Olga Tellis v. Bombay Municipal Corporation . It has been held in the case of Mohinder Singh Gill (1978 Vol. I SCC 405) : "The exception to the Rule of. Natural Justice are misnomer "In the case of I.J. Roy it was held by the Supreme Court that pre-decisional notice is absolutely essential irrespective of whether the proceeding is judicial, 'quasi judicial or administrative in nature.

27. Learned Counsel submitted that it was unfair for the respondent No. 2 to take decision behind the back of the petitioner after enquiry was initiated by another competent officer of the department and his report Annexure-10 clearly absolved the petitioner of having violated any of the provision of the law in the terms of the Bihar Act.

28. The contention of learned Counsel is will founded that the impugned action of the respondents is vitiated on account of infringement of principle of natural justice. The learned Counsel has cited several decisions of the Supreme Court referred above in support of his contention. Wade in his Administrative Law 5th Edn. has referred to the classic case of Cooper S. Wandsworth Board of Works (1863 14 CB NS) 180 approved in Ridge v. Baldwin (1964) AC 40. This decision according to Wade has played an important part in recent revival of right to be heard. Under the Act of 1855, it was provided that no one might put up a building in London without giving seven days' notice to the local board of works; and that if any one did so, the Board might have the building demolished. A builder nevertheless began to erect a house in Wandsworth without having given the notice and when his building had reached the second storey the board of works sent men late in the evening who demolished it. The Board did exactly what the Act said they might do in exactly the circumstances in which the Act said they might do it. And their action was of course, purely administrative. Nevertheless, the builder brought a successful action for damages for the injury to his building, merely on the ground that the board had no power to act without first asking him what he had to say for himself.

Erle C.J.SAID.:

I think the board ought to have given notice to the plaintiff and to have allowed him to be heard. The default in sending notice to the board of the intention to build, is a default which may be explained. There may be a great many excuses for the apparent default. The party may have intended to conform to the law. He may have actually conformed...though by accident his notice may have miscarried...I cannot conceive any harm that could happen to the district board from hearing the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many advantages which might arise in the way of public order, in the way of doing substantial justice, and in the way of fulfilling the purposes of the statute, by the restriction which we put upon them, that they should hear the party before they inflict upon him such a heavy loss. I fully agree that the legislature intended to give the district board very large powers indeed; but the qualification. I speak of is one which has been recognised to the full extent. It has been said that the principle...is limited to a judicial proceedings and that a district board ordering a house to be pilled down cannot be said to be doing a judicial act. I do not quite agree with that;...I think the appeal clause would evidently indicate that many exercises of the power of a district board would be in the nature of judicial proceedings.

Two of the other judgments in this case are important. Willes J. said:

I am of the same opinion, I apprehend that a tribuanl which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds ; and that the rule is of universal application, and founded on the plainest principles of justice. Now is the board in the present case such a tribunal'? I apprehend it clearly is.

And Byles, J. also said:

It seems to me that the board are wrong whether they acted judicially or ministerially. I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions beginning with Dr. Bentley's case, and ending with some very recent cases, establish that, although there are no positive words in a statute, requiring that the party shall be heard, yet the justice of the common law will supply the ommission of the legislature;

These last two quotations bring out clearly two especially important aspects; the universality of the principle which make it applicable to almost the whole range of administrative powers and the presumption that it will always apply, however, silent about it |he statute may be.

29. Learned Counsel for the petitioner submitted that the respondents took drastic action in purported exercise of powers under Section 13 of the Act and closed the petitioner's Institute and also initiated a criminal proceeding against his Director/Principal. I shall first come to the question whether the Institute in question contravened the provisions contained in said Act. In this case enquiry was set up to find out whether petitioner-Institute runs three years Diploma course in engineering or not. Learned Counsel referred to the second report (Annexure-B) to the counter-affidavit and submitted that from a bare perusal of the report it is apparent that none of the officers in their reports have even whispered that the petitioner-Institute runs three years diploma course in engineering. Therefore, the primary basis for taking action against the Institute was nonest.

30. Learned Counsel submitted that the power to seal the premises conferred by Clause(2) of Section 13 of the Act can be exercised only when the conditions prescribed in Section 13(1) exist. Admittedly no action in terms of Section 13 of the Act was ever taken against the Institute. No register/document was ever demanded/seized by respondent No. 4 and, therefore, the alleged report at Annexure-B devoid of any basis. Relience is placed on M/s. Express Newspaper Private Ltd. v. Union of India AIR 1986 872 in which it has been held:

Fraud on power voids the order if it has been held : bonafide for the ends design there is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power, in breach of law, say, by taking into account bonafide, and with best of intentions, some extraneous matters or by ignoring relevant matters, that would render the impugned act or order ultra vires.

31. Learned Counsel laid stress on Section 7 of the Act which applies to all private Engineering and Pharmacy Institutions, who are not affiliated permanently to any of the Universities of the State of Bihar and who prepare the students for degree or diploma in engineering or degree in Pharmacy. It is very clear from this section that it is applicable to only those private Engineering and Pharmacy Institutions who are not affiliated with any of the Universities in the State of Bihar and who prepare the students for degree or diploma in Engineering or degree in pharmacy granted by such Universities. It can have no application to Institutions who prepare the students for degree/diploma not granted by any University in the State of Bihar; assuming argumen do the petitioner's Institution runs diploma/degree course. Learned Counsel for the petitioner contended that Section 7 can not by any stretch of imagination extended to certificate granted by Board of Mining Examination which is not connected with any of the Universities in Bihar. Learned Counsel relied on M/s. Hekett Engineering Co. v. Their Workmen and submitted that the language of the Act can not be construed in a manner which would do violance to the Phraseology of the enactment. The words of the Statutes are themselves precise and unambiguous then no more can be necessary than to expound those words in their natural sense. Learned Counsel submitted that there is absolutely no ambiguity in Sections 2 and 3 of the Regulation and Control Act and hence rule of literal construction is to be observed. It is well settled rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Brougham said "We supply a defeat which the legislature could easily have supplied, and are making the law, not interpreting it. This is rule of "casus omissus pro omisso habendus ist: a case omitted is to be held as intentionally omitted."

32. The contention of learned Counsel is absolutely sound and must be accepted. Section 2 of the Act which is to be read with Section 7 does not suffer from any ambiguity. The certificates are granted under Regulation 12 of the Coal Mines, Regulation Act, 1957 (framed in exercise of power conferred under Section 7 of the Mines Act). The examination is conducted by the Board of Mining Examination. The petitioner-Institute prepares the students admitted in the Institute for appearing in the Certificate examination. This is clear from the perusal of the advertisement annexed as Annexure- C to the counter-affidavit. The conclusion is further fortified by the fact that two similar enactments. The Bihar Non-Govt. Physical Training Colleges (Control & Regulation) Act, 1982 and The Bihar Indigenous Medical Education Institution (Regulation & Control) Act, 1982 and Section 2 of the first Act prohibits imparting the education for the grant of Degree/Diploma (as well as for the grant of Certificates for the courses described therein). There is a similar provision in the latter Act. In the Act under consideration certificate is not included in the prohibition. The Legislature deliberately omitted to prohibit the running of Institute for the grant of certificate in engineering, although petitioner-Institute do not grant certificate in Engineering. It is evident from the Enquiry report (Annexure-10) that the petitioner-Institute does not come within the prohibition of the Act.

33. The petitioner has also challenged the criminal proceeding lodged against their Institute. Learned Counsel referred to the F.I.R. (Annexure-14) and contended that a criminal case was not lodged in pursuance of Annexure-13. The entire contents of the impugned F.I.R. is based on information and hearsay which has no solid foundation. It is submitted that no complaint therefore, made by any tribals stand of the substitute. None of the complainants described in Annexure-A as tribals. The allegation in the F.I.R. that the Institute has violated A.I.C.T.E Act, 1987 and the Bihar Act. is legally and factually incorrect. Learned Counsel has submitted that the prosecution of the Institute is malafide act and abuse of the process of the Court and hence interference by this Court is necessary to prevent miscarriage of Justice.

34. Learned Counsel placed offending advertisement and pleaded that no statement in the advertisement can be said to be false, It has been clearly stated that the authority to conduct the examination is Board of Mining Examination, Dhanbad. It has been stated that there are chances of immediate absorption after successfully competition of the course which is not an untrue statement because various students of this Institute have been passed in the competency Certificate examination. The results of some students have been annexed Vide Annexure-12 series. The Special feature of the Institute have been mentioned thus:

(a) Centre for First Aid and Cas Testing Examination in the campus approved by D.G.M.S, Government of India which is a correct statement as will become evident from letter dated 4.2.91 written by Shri S.K. Banerjee. the Director of Mines Safety, Ranchi and Koderma region.

(b) Institute owns building with spacious class rooms laboratory, library and workshop. It would be evident from Annexure-3 that the Institute was found fully equipped with gass testing chamber, library etc. Faculty members were found to be qualified with long experience in Coal field.

35. It is submitted that there is nothing in advertisement which can be attributed to act of fraud and because no fraud has been committed then the publication of the advertisement was not fraudulent act. Therefore, no fraud was played on any person by virtue of publication in the advertisement as alleged in the F.I.R. Moreover the person who was deceived has not been named. The other allegations in the F.I.R. are vague. The learned Counsel placed reliance in Kameshwar Prasad v. Bhola Nath Sharma 1968 PLJR 430 and in Misir v. Most. K. Kuar 1969 PLJR 360 and the case of Sanchitta Investment case followed in and submitted that as "no offence is disclosed in the first information report or the complaint, it will be the duty of the court to interfere with any investigation and to stop the same to prevent any kind of uncalled for any unnecessary harassment of any individuals."

36. Learned Government Advocate had placed reliance on L.N. Mishra Institute for Phamacy's case reported in 1993 Vol. 2 PLJR 379.

37. In LN. Mishra Institute's case the Institute was running a Diploma course in Pharmacy for which examination are conducted by the Controller of examinations, Health Department, Government of Bihar. The conduct in respect of an lnstitution which was not recognised in terms" of words 'Pharmacy Act, 1948 and Education Regulations 1991. Section 12 of the Pharmacy Act provides that an examination can not be approved by the Pharmacy Council. However, examinations are to be conducted by the Controller of the Examination. In view of the fact that the Institute was not recognised Institute High Court did not grant permission to its students to appear at the examinations following the rule of law laid down in A.P. Christian's Medical Education Society v. Government of A.P. and State of Maharasthra v. Vikash Saheb Rao 1992 Vol. IV SCC 433. Learned Counsel submitted that in LN. Mishra Institute's case provisions of Bihar State Engineering and Pharmaceutical Education Institution (Regulation & Control) Act, 1982 was not at all considered. Therefore, any observation made by this Court can not be binding precedent on the adjudication of the question involved in the writ application. In Bhagwan Budha Primary Teachers' Training College's case, the same question i.e. whether the students of an unrecognised Institution can be granted permission or not came up for consideration. Hon'ble Supreme Court rejected the claim of the petitioner. The observation of the Supreme Court is not ratio decidendi in view of the rule of law laid down in Kalawati Bai's case reported in 1991 Vol. II Civil L.J.

646 reads as follows:

An observation without reference to facts discloses neither the law nor the ratio decidendi, which could "be taken assistance of...

38. Respondents have placed heavy reliance on unreported decision of this Bench in Indian Institute of Mines and Technology v State of Bihar CWJC No. 1610/93 (R) disposed of on 21-7-94. In the unreported case Institute in question was sealed for its recognisition was withdrawn because the Institute was running a degree/diploma course which was undisputed and which was clear from the advertisement published by the petitioner-Institute in that case. It was found that the Institute made a false statement claiming that the said Institute was recognised by the Central Government and by the State Government. Consequently it also made a false claim that it has been approved. The Institute also claims its jobs were guaranteed on the completion of the course. There is no ratio in that case and this decision can not be cited as precedent in the instant case.

39. It has been held that every passing expression of Judge cannot be treated as an authority (Saiyada Massarranl v. Hindustan Steel Ltd., Bhilai Steel Plant : Every observation of the Supreme Court should no be read as Statutory enactments AIR 1965 SC 1887. It was held in the case of Ranchhodds v. Union of India 1961 Vol. III SCR 718 (723), that the opinion of the court on any question which was not required to be decided in a particular case is not the law declared and hence in not binding precedent. It has also been held in the case of Madhav Rao Scindia v. Union of India, following with approval in the case of Commissioner of Income Tax v.

Sun Engineering Works reported in 1992 AIR SC Weakly Report SCW 2600 para 39 "It is not proper to regard a clause or the sentence occurring in a Judgment of the Supreme Court, divorced from it's context as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."

It was also help that it is neither desirable nor permissible to pick out a word or a sentence from the Judgment of this (Supreme Court) Court divorced from the context of the question under consideration and during it be a complete law declared by this Court. The Judgment must be read as a whole and the observations from the Judgment have to be considered in the light of the question which were before this Court.

40. Now I pass on to the next question as to whether the impugned action of the respondents in invoking the provision of the Act is justified. The learned Counsel for the petitioner referred to the provision of the Bihar Act, 1982. Section 2 prohibits conducting and running colleges for imparting of education for the grant of Degree/Diploma in engineering and in Pharmacy. This section prohibits admission in a college for grant of aforesaid degrees. Section 7 of the Act says that this Act applies to all private engineering and Pharmacy Institution who are not affiliated permanently to any University of State of Bihar and who prepare the students for degree or diploma in engineering or pharmacy. Section 9 describes that those institutions which are run in contravention of the provisions of the Act shall be required to obtain sanction during the period of month coming into force of this Act. If promotion to run such Institution is rejected then the Institution shall be deemed to be closed on expiry of the period of the date of affiliation. Section 11 prescribes punishment for contravention of the Act. Section 11 is a penal provision. Section 18(1) of the Act provides for search and seizure. Shri Singh submitted that the activities of the petitioner-Institute does not come at all within the ambit of the provision contained in the Act for the similar reason that the Institution impart education for certificate and not degree or diploma in engineering or pharmacy. The contention of Shri Singh is sound and must be accepted. It is clear from Section 7 of the Act that the Act applies only to such engineering colleges which imparts education for the grant of Degree/Diploma. It can not be extended firstly to institution which do not impart education for grant of degree or diploma. Secondly the Act can not at all deem to have extended to such Institution which grant degree or diploma granted by any of the Universities in the State of Bihar. It has rightly been contended that the provision of the Act being penal in nature has to be construed strictly and literally in favour of the subject. The provision of Sections 2 and 7 of the Act is free form any ambiguity. The rule of literal construction will apply. It is rule of interpretation of literal construction of the statute that nothing is to be added or to be taken from Statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. The effect of statute can not be supplied by Judicial interpretation. The context provisions of the Act to those institutions which are not expressly convered would violate the rule of casus omissus. See (Dr. William Hiray v. Mr. Justice Bakteshwar Lentin) followed by AIR 1990 SC 933.

41. It would be pertinent to consider similar enactment namely, Bihar Indigenous Medical Educational Institution (Regulation & Control) Act, 1982 and the Bihar Non-Government Physical Training Colleges (Control of Regulation) Act, 1982. In these two Acts legislature has prohibited the imparting of education for the grant of degree or diploma as also grant of certificate course described therein. Omission would be held to be deliberate and is not due to inadvertant.

42. Learned Government Advocate places strong reliance on an unreported Judgment of this Court in C.W.J.C. No. 1610/93R (Indian Institute of Mines v. State of Bihar). This decision is categorical finding that the petitioner-Institution is of imparting degree level course in various branches in engineering in mining which is not the case here. The question raised in this application had not been considered and decided. In that case it was disposed of at the admission stage. One of the provisions of the Act were analysed and considered as in our opinion, decision in unreported case completely inapplicable in the facts and circumstances of the case. The Supreme Court in 1990 (Supple) SCC 722 (Managing Committee of Bhagwan Budh Primary Teachers' Training College, v. State of Bihar) relied by this Court in unreported case has not laid down any law. There the Institution had applied for affiliation and in the meantime admitted students, which was depricated by the Supreme Court. The decision is hardly of any help in this case.

43. This writ application is accordingly allowed and the order dated 16.8.94 (Annexure-13) is quashed. The action taken by the respondings in closing the Institution and putting lock and seal is declared illegal and ultraviras. Respondents are restrained from interfering with the functioning of the Institution. We, however, would like to emphasise here that the petitioner must be very careful in publishing advertisement for admission to the cours`es conducted by the Institution so that there may not be any confusion in the minds of the candidates or their guardians regarding the actual activities of the Institution. There should be clear and unambiguous declaration in the advertisement with proper caption that the Institute imparts effective coaching in both theoritical and practical courses for appearance in examination of overman, Surveyer and Mining Sardar conducted by the Board of Mining Examination regulated under Coal Mines Regulation, 1957. So far as the Institution of criminal case is concerned, we are not satisfied that any case for interference has been made out at this stage. The case is under investigation and if charge-sheet is submitted and cognizance is taken it will be open to the petitioner to raise the question of legality of the criminal case before the appropriate forum. There shall be no order as to costs.

P.K. Deb, J.

44. I agree