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N. Pararneswara Kurup (Died) and ors. Vs. State of Tamil Nadu and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberS.A. Nos. 1847 of 1979 and 41 and 69 of 1980
Judge
Reported inAIR1986Mad126
ActsConstitution of India - Article 30(1); Code of Civil Procedure (CPC), 1908 - Sections 80
AppellantN. Pararneswara Kurup (Died) and ors.
RespondentState of Tamil Nadu and ors.
Appellant AdvocateN. Thiagarajan, Adv. for ;P. Anantha Krishna Nair, Adv., ;G.S. Thamby and ;K. Sreekumaran Nair, Advs.
Respondent AdvocateS. Krishnaswami, Govt. Adv.
Cases Referred(N. Paramesara Kurup v. State of Tamil Nadu
Excerpt:
.....suits on ground that institutions managed by appellant does not come within linguistic minority school under article 30 (1) - as per article 30 (1) minorities based on language to establish and administer educational institution of their choice - at time of establishment schools were not minority since they were in travancore-cochin - appellant established that institutions became minority in view of fact that place where they were situated transferred to tamil nadu - suit not barred by section 80 since it was filed within prescribed time - appeal allowed. - - 219 of 1977, the plaintiff pleaded that he is the manager of the sree krishnavilasarn middle school, muttukadu, which was started by the plaintiff in 19j3 mainly for the benefit of the malayalees, who form a minority section..........of the constitution of india and for a consequential injunction restraining the defendant state of tamil nadu from enforcing certain provisions of the tamil nadu act 29 of 1974. o.s. 219 of 1977 was filed by one sankaran pillai for a declaration that the sree krishnavilasom middle school, muttakadu under the management of the plaintiff is a minority school coming under the purview of art. 30(l) of the constitution of india and for consequential injunction restraining the defandant-state of tamil nadu from enforcing the provisions of act 29 of 1974. o.s. 481 of 1977 was filed by one vasudevan thampi for a declaration that the aided high school, orappanavilai in manavalakurichi village, kalkularn taluk, under the management of the plaintiff is a minority educational institution within the.....
Judgment:

1. These second appeals arise out of a common judgment pronounced in A.S. 96 of 1978, 117 of 1978 and 133 of 1978 on the file of the Subordinate Judge, Padmanabhapuram, which in turn were filed against the judgments in O.S. Nos. 219 of 1977, 9 of 1977 and 481 of 1977 respectively on the file of the Principal District Munsif, Padmanabhapuram. O.S. 9 of 1977 was filed by one Parameswara Kurup for a declaration that the Thiruvattar High School at Thiruvattar, Kalkulam taluk, now in Kanniyakumari district under the management of the plaintiff is a linguistic minority educational institution coming under the, purview of Art. 30(1) of the Constitution of India and for a consequential injunction restraining the defendant State of Tamil Nadu from enforcing certain provisions of the Tamil Nadu Act 29 of 1974. O.S. 219 of 1977 was filed by one Sankaran Pillai for a declaration that the Sree Krishnavilasom Middle School, Muttakadu under the management of the plaintiff is a minority school coming under the purview of Art. 30(l) of the Constitution of India and for consequential injunction restraining the defandant-State of Tamil Nadu from enforcing the provisions of Act 29 of 1974. O.S. 481 of 1977 was filed by one Vasudevan Thampi for a declaration that the Aided High School, Orappanavilai in Manavalakurichi village, Kalkularn taluk, under the management of the plaintiff is a minority educational institution within the meaning of S. 2(6) of the Tamil Nadu Recognised Private School Regulation Act 29 of 1974, and Art. 30(1) of the Constitution of India and for consequential injunction restraining the defendant-State of Tamil Nadu from enforcing certain provisions of the Tamil Nadu Act 29 of 1974.

2. In O. S. 9 of 1977, the plaintiff contended that the Thiruvattar High School at Thiruvattar, Kalkulani taluk, was established in the year 1928 on his own lands of 4.5 acres, that he has been the Manager-cum Headmaster of the school ever since its inception and even though the school was originally intended mainly for the benefit of the students of the Nair community in and around the village of Thiruvattar, it has been imparting education to students of all communities. He further contended that the High School is a minority educational institution coming within the purview of Art. 30(1) of the Constitution of India. In O.S. No. 219 of 1977, the plaintiff pleaded that he is the Manager of the Sree Krishnavilasarn Middle school, Muttukadu, which was started by the plaintiff in 19J3 mainly for the benefit of the Malayalees, who form a minority section of the people of the locality and that the school satisfied all the conditions of a minority school. In O.S. 481 of 1977, the plaintiff pleaded that he has established the Aided High School. OrappanaviII4 Kalkulam taluk as early as in 1947 and it is a linguistic minority school coming within the purview of Sec. 2(6) of Act 29 of 1974 and Art 30(1) of the Constitution of India.

3. In all these cases, the suits were resisted by the defendant-State of Tamil Nadu, on the ground that the schools referred to are not linguistic minority schools. One of the contentions of the State in O.S. 9 of 1977 was that the suit is bad for want of notice under S. 80 C. P. Code. The trial Court dismissed all the three suits holding that they are not minority schools, and, therefore not entitled to the protection under Art. 30(1) of the Constitution of India. The appellate Court also confirmed the judgments of the trial Court and dismissed all the three appeals. The aggrieved plaintiffs have now preferred the above second appeals.

4. The learned appellate Judge, While disposing of the appeals, followed the decision reported in Azeez Badsha v. Union of India, : [1968]1SCR833 and observed that the minority will have the right to administer the educational institutions of their choice provided they have established them, but not otherwise. His view was that when the schools were established, they were then in the erstwhile Travancore-Cochin State and therefore, it cannot be said that at the time of establishment of the educational institution they were linguistic or religious minority. He would further observe that the words 'establish and administer' in the Article must be read conjunctively and so read it gives the right to the minority, to administer an educational institution, provided it has been established by it. He ultimately held that as these institutions were not established by persons who cannot be called minority at the time of establishment, they will not be entitled to the protection of Art. 30(1) of the Constitution of India.

5. Learned counsel appearing for the appellants' in all these appeals drew my attention to the fact that Kanniakumari district has been transferred to the State of Tamil Nadu by the States Reorganisation Act, (Central Act 37 of 1956) that these linguistic classes have been reduced to minority by the Act 29 of 1974 of the State and that therefore the appellants are entitled to the protection guaranteed under Art. 30(1) of the Constitution of India. They also pointed out that the plaintiffs, who established those institutions, are also managing the same and that therefore there can be no impediment to hold that the institutions are minority schools within the purview of Art. 30(1) of the Constitution of India.

The fact that the plaintiff him selves have established the institutions and are managing the same is not denied by the respondent State of Tamil Nadu.

5A. What is contended by Mr. S.Krishnaswami, learned Government Advocate appearing for the State, is that in order to attract the provisions contemplated in Art. 30(1) of the Constitution of India, the minority community must not only establish the institution but also administer the same, and mere right of management will not give them the protection under Article 30(1) of the Constitution of India. The case reported in Azeez Badsha v. Union of India, : [1968]1SCR833 , will not help the respondent-State. That case was concerned with Aligarh Muslim University and it was found that the University was not established by the Muslim minority. The Aligarh University when it came into existence in 1920 was established by the Central Legislature by the Aligarh Muslim University Act 1920 and it may be t4at the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority. As the Aligarh University was neither established nor administered by the Muslim minority, there is no question of any amendment to the 1920 Act made by the Amending Acts of 1951 and 1965 being unconstitutional under Art. 30(1) of the Constitution of India for that Article does not apply at all to the Aligarh University.

6. Section 2(6) of Tamil Nadu Act 29 of 1974,readsthus -

' 'Minority school means a private school of its choice established and administered, or administered, by any such minority whether based on religion or language as has the right to do so under clause (1) of Art. 30 of the Constitution.'

A reading of Art. 30(1) shows that it gives right to all minorities whether based on religion or language to establish and administer educational institutions of their choice. The words 'of their choice' have been interpreted to qualify the educational institution and show that -the educational institution need not *be administered by some particular class and the minorities have their own right and freedom to establish and administer such educational institutions as they choose. The fact is also not disputed by the State. But what is contended by the learned Government Advocate appearing for the State is that at the time of establishment of these institutions the plaintiffs were not a minority. It may be that at the time of the establishment, the schools were in the erstwhile State of Travancore-Cochin. It is by the Central Act 37 of 1956 that Kanniakumari district was transferred to the State of Tamil Nadu. The Tamil Nadu Act 29 of 1974 came into force on 1-12-1974. The right of the minorities to administer their educational institutions does not, however, prevent the making of a reasonable regulation in respect of 'the minority institution. Regulations are necessarily to be made in the interest of the minority institution. No doubt Tamil Nadu Act 29 of 1974, with reference to Kanniakumari district, was challenged in a batch of writ petitions in this court and this Court allowed some of the writ petitions where it is admitted that the school is a minority one and dismissed the rest of the writ petitions observing that their remedy is to file suits within three months from the date of dismissal of the petitions. Therefore, the plaintiffs cannot any more questions the validity of Act 29 of 1974. The right conferred by Art. 30(1) of the Constitution of India is not an illusion and such a right cannot be allowed to whittle down. In this case, there is no dispute that the plaintiffs have established the institutions and are in management of the same. A generous liberal and sympathetic approach should weigh with the Court in construing Ai c. 30(1) of the Constitution of India. The safeguarding of interest of the minorities amongst affluent population is very important. Such a generous and sympathetic approach is reflected in the Constitution so as to preserve the right of the minorities in so far as their educational institutions are concerned when such is the case, the plaintiffs should not be deprived of their protection guaranteed under Art. 30(1) of the Constitution of India, merely, because the plaintiffs who established the institutions were not minority at the time when the institutions were established, but later became minority in view of the fact that Kanyakumari district was transferred to the State of Tamil Nadu, by virtue of the provisions of the Central Act 37 of 1956. In this view of the matter, I am of opinion that the plaintiffs will be entitled to the declaration prayed for.

7. One other point raised by the learned Government Advocate appearing for the State is that in O.S. 9 of 1977, the plaintiff has not given notice under S. 80, C.P.C. and therefore the suit should fail. But my attention is invited by the learned counsel appearing for the appellant in S.A. 1847 of 1979 to the fact that the plaintiffs in O.S. 9 of 1977 filed a writ petition W. P. 938 of 1975 (N. Paramesara Kurup v. State of Tamil Nadu, rep. by the Secretary to Govt. Education Dept., Madras), against the State of Tamil Nadu challenging the Tamil Nadu Recognised Private Schools (Regulations) Act 29 of 1974, and a Bench of this Court dismissed the said writ petition granting three months time to the petitioner to seek the remedy by way of suit. Accordingly the plaintiffs filed the suit, O.S. 9 of 1977, within three months from the date of judgment in W. P. 938 of 1975. Therefore, I must hold that the suit is not bad for want of notice under S. 80, C.P.C.

8. The result is, all the appeals are allowed, the judgments and decrees of the Courts below are set aside and the suits viz. O.S. 9 of 1977, O. S. 219 of 1977 and O. S 481 of 1977 are decreed as prayed. There will be no order as to cost.

9. Appeals allowed.


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