- Bookmark
- Share
- CaseIQ
N. Parameswara Kurup... v. The State Of Tamil N...
Structured Summary of the Opinion
Factual and Procedural Background
These second appeals arise from a common judgment in A.S. 96 of 1978, 177 of 1978 and 133 of 1978 (Subordinate Judge, Padmanabhapuram), which were filed against judgments in O.S. Nos. 219/1977, 9/1977 and 481/1977 (Principal District Munsif, Padmanabbapuram).
O.S. 9 of 1977 (Plaintiff: N. Parameswara Kurup) sought a declaration that Thiruvattar High School is a linguistic minority educational institution within the meaning of Article 30(1) of the Constitution and consequential injunction restraining the State of Tamil Nadu from enforcing certain provisions of Tamil Nadu Act 29 of 1974.
O.S. 219 of 1977 (Plaintiff: Sankaran Pillai) sought similar relief for Sree Krishnavilasom Middle School, Muttakadu. O.S. 481 of 1977 (Plaintiff: Vasudevan Thampi) sought similar relief for the Aided High School, Orappanavilai, relying on Section 2(6) of the Tamil Nadu Recognised Private School Regulation Act 29 of 1974 and Article 30(1).
At trial, the State of Tamil Nadu resisted the suits, contending inter alia that the schools are not linguistic minority schools (and in O.S. 9 of 1977 that the suit was barred for want of notice under Section 80, Civil Procedure Code). The trial court dismissed all three suits; the appellate court affirmed. The plaintiffs (managers of the respective schools) filed these second appeals.
Legal Issues Presented
- Whether the schools in question are "minority educational institutions" protected by Article 30(1) of the Constitution of India and by Section 2(6) of the Tamil Nadu Recognised Private Schools (Regulation) Act 29 of 1974.
- Whether the fact that the institutions were established when the area was part of the erstwhile Travancore–Cochin State (prior to transfer of Kanyakumari district to Tamil Nadu by the States Reorganisation Act, Central Act 37 of 1956) precludes the institutions from claiming minority status under Article 30(1).
- Whether the right under Article 30(1) requires that a minority must both have established and must administer the institution (i.e., whether establishment by a minority at the time of founding is a prerequisite), or whether subsequent change in minority status of the founders affects entitlement.
- Whether O.S. 9 of 1977 was barred for want of compliance with Section 80, Civil Procedure Code.
Arguments of the Parties
Appellants' Arguments (Plaintiffs / School Managers)
- The schools were established by the plaintiffs (who are the managers) and have been managed by them; this fact is not disputed by the State.
- Kanyakumari district was transferred to the State of Tamil Nadu by the States Reorganisation Act (Central Act 37 of 1956), and thereafter the relevant linguistic classes were rendered a minority in that district by Tamil Nadu Act 29 of 1974; hence the plaintiffs and the institutions are entitled to Article 30(1) protection.
- In respect of O.S. 9 of 1977, the plaintiffs filed the suit within three months of a writ petition dismissal (W.P. 938 of 1975) as directed by the Court, thereby curing any alleged defect under Section 80, C.P.C.
Respondent's Arguments (State of Tamil Nadu)
- The schools are not linguistic minority institutions and therefore not entitled to protection under Article 30(1).
- In O.S. 9 of 1977 the suit was bad for want of notice under Section 80, C.P.C.
- Article 30(1) confers rights only where a minority has both established and administers the institution; a mere right of management or administration, without establishment by the minority, does not attract Article 30(1). The decision in Azeez Badsha v. Union of India was relied upon to support this view (on the facts of Aligarh Muslim University, the University was not held to be established by the Muslim minority).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Azeez Badsha and another v. Union of India | Principle that Article 30(1) protection applies where a minority has established (and administers) the institution; in that case Aligarh Muslim University was held not to have been established by the Muslim minority and so Article 30(1) did not apply. | The appellate court had followed this decision to the effect that establishment by the minority is a necessary condition; the State relied on it. The present Court considered the case (and the Government Advocate submitted it did not assist the State on facts of the present appeals) and proceeded to interpret Article 30(1) and Section 2(6) in the context of the facts (transfer of Kanyakumari and subsequent minority status), ultimately finding for the plaintiffs. |
| N. Parameswara Kurup v. State of Tamil Nadu, W.P. 938 of 1975 (bench judgment) | The bench dismissed the writ petition challenging Act 29 of 1974 but granted three months' time to the petitioner to seek remedy by way of suit. | The Court applied this decision to hold that the plaintiff in O.S. 9 of 1977 filed the suit within three months from that judgment; hence the suit was not bad for want of notice under Section 80, C.P.C. |
Court's Reasoning and Analysis
The Court began by examining the statutory definition in Section 2(6) of Tamil Nadu Act 29 of 1974: a "minority school" means a private school "established and administered, or administered, by any such minority ... as has the right to do so under Clause (1) of Article 30 of the Constitution."
The Court interpreted Article 30(1) as conferring a right on all minorities (religious or linguistic) "to establish and administer educational institutions of their choice." The phrase "of their choice" was read to qualify the educational institution itself, indicating freedom for minorities to choose what institutions to establish and administer.
The Court acknowledged the State's point that at the time of establishment some of these schools were in the erstwhile Travancore–Cochin State (i.e., before the transfer of Kanyakumari district to Tamil Nadu by Central Act 37 of 1956). The appellate court had relied on the Azeez Badsha line of authority to hold that the right under Article 30(1) accrues only if the institution was established by the minority at the time of its founding.
However, the Court emphasized a generous, liberal and sympathetic approach to construing Article 30(1) to safeguard minority educational interests. The Court noted that on the facts there was no dispute that the plaintiffs had established the institutions and were managing them. The Court also noted that Tamil Nadu Act 29 of 1974 (as applied to Kanyakumari district) had been subject to writ petitions; some were allowed where the school was admitted to be a minority one, and others were dismissed with direction to sue within three months. Because of the W.P. 938/1975 direction, the Court held that the plaintiff in O.S. 9 had filed the suit within the prescribed period and therefore that suit was not barred for want of notice under Section 80, C.P.C.
Concluding its analysis, the Court held that plaintiffs who had established and were managing the institutions would be entitled to declarations and protections under Article 30(1) notwithstanding that, at the exact time of establishment, the founders may not have been a minority in the territorial sense applicable then, because the transfer of Kanyakumari district and the subsequent operation of State legislation rendered the linguistic classes a minority in the relevant territory. The Court therefore allowed the appeals on the stated grounds.
Holding and Implications
Holding: All the appeals are allowed; the judgments and decrees of the courts below are set aside; and the suits O.S. 9 of 1977, O.S. 219 of 1977 and O.S. 481 of 1977 are decreed as prayed.
Implications (direct effects stated in the opinion):
- The plaintiffs' suits were decreed in accordance with their prayers (the opinion records that the suits are "decreed as prayed").
- The particular challenge that O.S. 9 of 1977 was barred for want of notice under Section 80, C.P.C. was rejected because the plaintiff had complied with the three-month direction arising from W.P. 938 of 1975.
- There will be no order as to costs.
Broader implications: The Court articulated a principle of construing Article 30(1) "generously, liberally and sympathetically" in favour of safeguarding minority educational institutions. The opinion does not state that it has laid down a novel legal precedent beyond its application to the facts of these appeals; it confines itself to allowing the present suits and setting aside the judgments below.
JUDGMENT
1. These second appeals arise out of a common judgment pronounced in A.S 96 of 1978, 177 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. Padmanabbapuram. 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 Hide by one Sankaran Pillai for a declaration that the Sree Krishavilasom Middle School, Muttakadu under the management of the plaintiff is a minority school coming under the purview of Art. 30(1) of the Constitution of India and for consequential injunction restraining the defendant-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, Kalkulam 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, Kalkulam taluk, was established in the year 1928 on his own lands of 4.5 acres, that he has been the Manager-cum-Head-master 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 contend-d 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 Krishnavilasam Middle School, Muttukadu, which was started by the plaintiff in 193 mainly for the benefit of the Malayalees, who farm a minority section of the people of the locality and that the school satisfied all the coalitions of a minority school. In O.S 481 of 1977, the plaintiff pleaded that he has established the Aided High School, Orappanavillai, Kalkulam taluk as early as in 1947 and it is a linguistic minority school coming witnin the purview of Sec. 2(6) of Act 29 of 19 4 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 second appeals.
4. The learned appellate Judge, while disposing of the appeals, followed the decision reported in Azeez Badsha and another v. Union of India,1 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 plaintiffs themselves have established the institutions and are managing the same is not denied by the respondent State of Tamil Nadu.
6. 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 a mere right of management will not give them the protection under Art. 30(1) of the Constitution of India. The case reported in Azeez Badsha and another v. Union of India 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 that 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. S. 2(6) of Tamil Nadu Act 29 of 1974 reads thus:
“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 Cl. (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 the Kanniakumari district was transferred to the State of Tamil Nadu. The Tamil Nadu Act 29 of 1974 came into force on 1st December, 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 question 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 Art. 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. Parameswara Kurup v. State Of Tamil Nadu, rep by the Secretary to Govt., Education Dept., Madras, respondent, against the State of Tamil Nadu challen ging the Tamil Nadu Recongised 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 costs.
VCS.
Alert