N. Pararneswara Kurup (Died) and Others vs State of Tamil Nadu and Others

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.

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.

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.

The learned appellate Judge, While disposing of the appeals, followed the decision reported in S. Azeez Basha and Another Vs. Union of India

(UOI), 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.

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 S. Azeez

Basha and Another Vs. Union of India (UOI), , 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.

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.

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.

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.

Appeals allowed.