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TMI Blog2005 (2) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the said special enactment legislated by the Parliament would prevail over the A.P. Act to the extent of its repugnancy. The Writ Petitioners are the private educational institutions. They wanted to establish engineering colleges in the State of Andhra Pradesh. They applied to the authorities under the AICTE Act and approval was granted to them for the academic year 1997-98 by the AICTE Council. These Writ Petitioners made applications under Section 20 of the Act for permission to establish the institution. The permission was rejected on the ground that the Writ Petitioners had been seeking permission to establish colleges in the places where already there were number of colleges and that the State Government was not satisfied about the educational needs of that locality. In that view of the matter, permission was declined. Aggrieved by the same, the Writ Petitions were filed. A.P. Act is a consolidating and amending Act made by the State Legislature with the object of reforming, organising and developing educational system in the State and to provide for matters connected therewith or incidental thereto. This legislation had received the assent of the President. Under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (2) shall (a) before the permission is granted, satisfy the authority concerned, - (i) that there is need for providing educational facilities to the people in the locality; (ii) & (iii) (b) & (c) xxxxxxxxxxxxxxxxxxxxx (4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987 no educational institution shall be established except in accordance with the provisions of the Act." The source of legislation of the A.P. Act is traced to Entry 25 of the Concurrent List which is to the following effect:- "Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." AICTE Act was enacted by the Parliament by virtue of the powers under Entry 66 of the Union List wherein exclusive power is vested with the Central Government with regard to technical education. AICTE Act was enacted with the object of regulating and coordinating the development of technical education throughout the country and also for establishment of proper and uniform norms and standard of technical education in India. Under Section 3, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... central government in respect of grant of character to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examination and awarding of membership certificates; (m) lay down norms for granting autonomy to technical institutions; (n) take all necessary steps to prevent commercialisation of technical education; (o) provide guidelines for admission of students to technical institutions and universities imparting education; (p) inspect or cause to inspect any technical institutions; (q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fails to comply with the directions given by the council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the council; (r) take steps to strengthen the existing organizations, and to set up new organizations to ensure effective discharge of the council's responsibilities and to create positions of professional, technical and supporting staff based on requirements; (s) declare tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government under Section 20 of the Act was required as the field is completely covered by the AICTE Act. It was argued that once the approval was granted by the Council, the State Government cannot refuse permission on the ground that the proposed educational institution may not subserve the educational needs of the locality. The learned Counsel for the State, on the other hand, contended that Section 20 of the AP Act and Section 10 of the AICTE Act operate in different fields, there is no conflict between these provisions and that they are not repugnant to each other and the decision of the Division Bench is erroneous. It was also contended by the appellant's Counsel that the State Legislature has legislative competence to pass the enactment and that, in view of Entry 25 of the Concurrent List, the State alone would be competent to say whether an institution should be established in an area to serve the educational needs of that locality. The legislative powers of the Parliament and the State Legislatures are governed by Article 246 to 255 of Part II of the Constitution. Article 246 reads as follows:- "Subject-matter of laws made by Parliament and by the Legislature of St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict. Thus, the question of repugnancy between the Parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in Concurrent List and there is a conflict. In both the situations, Parliamentary legislation will predominate, in the first, by virtue of the non-obstante clause in Article 246(1), in the second, by reason of Article 245(1). Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President's ascent prevails in that State; this again is subject to the proviso that the Parliament can again bring a legislation to override even such State legislation. It is in this background that the provisions contained in the two legislative enactments have to be scrutnised. The provisions of the AICTE Act are intended to improve the technical education and the various authorities u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y IIT is to be established in a particular region, a general survey could be conducted and the Council can very much conduct a survey regarding the location of that institution and collect data of all related matters. But as regards whether a particular educational institution is to be established in a particular area in a State, the State alone would be competent to say as to where that institution should be established. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions. This Court in M. Karunanidhi v. Union of India, (1979) 3 SCC 431 at page 499 held thus: "It is well settled that the presumption is always in favour of the constitutionality of a Statute and the onus lies on the person assailing the Act to prove that it is unconstitutional Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied: 1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such and inconsistency is absolutely irreconcilable. 3. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for application of this article, firstly, there must be repugnancy between the State law and the law made by Parliament. Secondly, if there is repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254 (1) and both Acts would prevail." In T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481, Justice Khare, as he than was, on the question of transposition of subject "Education" from List II to List III and its effects, held : "It may be remembered that various entries in three lists of the Seventh Schedule are not powers of legislation but field of legislation. These entries are mere legislative heads and demarcate the area over which the appropriate legislatures are empowered to enact law. The power to legislate is given to the appropriate legislatures by Article 246 and other articles. .Thus the function of entries in three lists of the Seventh Schedule is to demarcate the area over which the appropriate legislatures can enact laws but does not confer power either on Parliament or the State Legislatures to enact laws. It may be rem ..... 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