Sri Sowdeswari Mahajana Charitable Trust, Salem, appeal in court to get minority benefit under Article 30(1)

ORDER Abdul Hadi, J.

1. This civil revision petition is against the order dated 12.3.1987 in C.M.A. No. 200 of 1986 on the file of the Principal Judge, City Civil Court, Madras, reversing the dismissal order of the trial Court in I.A. No. 587S of 1986 in the suit and granting injunction prayed for in the said I.A. No. 5873 of 1986. The injunction prayed for in the said I.A. is to restrain the petitioners, the State and the Director of Collegiate Education, from interfering with the plaintiff-respondent's management and administration of Salem Sowdeswari College in any manner and to restrain them from enforcing Sections 5, 11 to 14, 14-A, 18(2), 19 to 22, and 30 of the Tamil Nadu Private College (Regulations) Act, 1976 (Tamil Nadu Act 19 of 1976)(hereinafter referred to as the Act) and Rules 12(3) and 4, 13 and 14 made thereunder and any order made in relation to Section 18(2), 19, 20 to 22 against the said college and to restrain them from taking any steps in pursuance of show cause notice dated 26th October, 1985 for the State taking over the said college.

2. The suit filed by the plaintiff-first respondent Sri Sowdeswari Mahajana Charitable Trust, Salem, is for (a) declaration that the said college is a 'minority college' under Section 2(7) of the above said Act, established by the Kannada speaking devanga linguistic minority community of Tamil Nadu for the benefit of Kannada speaking devanga community of Tamil Nadu and entitled to constitutional protection under Article 30(1) of the Constitution of India, that it is a denominational institution belonging to the above said community within the meaning of Article 26 of the Constitution of India, that the Constitution of college committee by the board of trustees of the trust contravenes Articles 26 and 30 of the Constitution of India and that the petitioners have no right to interfere with the said rights of the said community to manage the said college and for issuing consequential permanent injunction.

3. Before the abovesaid civil revision petition was taken up I suggested to the learned Advocate General appearing for the petitioners that instead of pursuing the civil revision petition the suit itself could be taken up and disposed of at very early date. But since the learned Advocate General preferred to have an order now in the civil revision petition I have heard the arguments of all the counsel in the civil revision petition and hereby pass the order thereon. Since the said C.R.P., arises out of the interim order passed in the suit, it is needless to say that my present order is also based on prima facie conclusions reached by me pending disposal of the suit.

4. The abovesaid college established in the year 1975, is admittedly run by the above said trust. No doubt, the said trust was founded and funded by Kannada speaking devanga community of Tamil Nadu under Ex. P. 2, dated 22.7.1973. The said Kannada speaking devanga community may be a minority community in this Stale. It may also be true that the said trust is managed and administered by trustees who belong to the said community alone all these years. Under the said trust deed the 16 founders therein shall be the first body of trustees of the above trust and they shall hold office for their lives. However it is also provided that it shall be open to the said body of trustees to co-opt five more persons to act as trustees with them, on the board, provided that such co-opted trustees shall continue in office only for 3 years from the dale of co-option. But it is not stipulated that the co-opted trustees should only be from the abovesaid community alone. Further though the object of the Trust inter alia is to establishments and maintain Colleges, it does not say that such establishments and maintenance must be for the benefit of the students of the abovesaid community alone. On the other hand, the trust deed provides, as one of its objects that the said trust should provide for scholarship to deserving students irrespective of caste, creed or religion and to provide work to unemployed persons without distinction of caste or creed or religion, by establishing technical centres and work-shops, etc.

5. While so, the settled law is that unless the institution is founded for the benefit of a minority community, Article 30 of the Constitution of India is not attracted to that institution and the institution will not be a minority institution entitled to protection under the said article Vide State of Kerala v. Mother Provincial . Section 2(7) of the abovesaid Act also says that 'minority college' means a private college established and administered, by any such minority whether based on religion or language as has the right to do so under Clause (1) of Article 30 of the Constitution. It has also been held in the judgment of this Court dated 12.9.1986 in S.A. No. 679 of 1982, relying on the decisions in Rajershi Memorial Basic Training School v. State of Kerala A.I.R. 1973 Ker. 87, and in A.P. Christian Medical College Educational Society v. Government of A.P. . that the mere management by the minority community is not enough to make the institution a minority one and the real test is whether the institution is established and administered for the benefit of the minority community.

6. But what is urged before me is that the said trust deed Ex. P. 2 was modified by the Rectification deed Ex. P. 37, dated 21st March, 1984, executed by 11 founded trustees out of the total original 16 trustees, whereby the original trust deed was retrospectively amended from 22.10.1973. In the said rectification deed it is stated four out of the original 16 trustees had died. But it is not stated why the other remaining trustee has not joined in the execution of the said deed. That rectification deed provides, in addition, the following objectives-

(i) to engage and so such acts for the amelioration and upliftment of Kannada-speaking devanga community, a linguistic minority community of Tamil Nadu, and

(ii) to extend to the persons belonging to Kannada speaking devanga community all such facilities and preferences in the educational institution etc., run by the trust.

It is also provided therein that the co-opted trustees shall only be from the kannada speaking devanga community as the said trust was founded and run by the charitable minded persons of Kannada speaking devanga community basically with the prime object of safeguarding the interest of the people of this linguistic minority community. It is also provided therein that the abovesaid provisions were made in the said deed in order to seek constitutional safeguards to the interest of the - Kannada speaking devanga community a linguistic minority of Tamil Nadu.

7. Whether such a rectification of the original deed could be made by the said 11 of the 16 founder trustees and whether the said rectification could be made retrospectively could be decided only in the suit. None of the counsel who argued before me cited any direct conclusive authority before me on this particular point. Anyway that can be decided only in the suit, particularly, after deciding the question whether only the said 11 trustees were alive, and, if other 4 were dead by then, why the remaining trustees did not join in the execution of the deed etc.

8. As the original trust deed stands, admittedly the trust and the college it runs are not for the benefit of the Kannada speaking devanga community of Tamil Nadu alone. The mere fact that only devanga community people were trustees so far, and only people of the said community were co-opted as trustees so far, cannot lead to the conclusion that the intention of the trust was only to benefit the devanga community people. The lower appellate court has erred in this aspect. It erred in observing that the fact that only devanga community has been co-opted as trustees, would prima facie lead support to the case of the appellant trust that the intention of the appellant trust was only to benefit the devanga community people. The original trust deed itself does not say that only devanga community people should function as trustees.

9. That apart, it has been held that pending declaration that an institution is a minority institution, it should be treated only as a non-minority institution, and all the provisions of the abovesaid Act should apply to it. By order dated 20.4.1983 in W.M.P. No. 1231 of 1983 in W.P. No. 896 of 1983, this Court observed as follows:

As held by the Division Bench of this Court unless the declaration is secured in a court or the concerned authorities themselves admit that a particular institution. (Sic.) provisions of Tamil Nadu Act 19of 1976 would apply. It is not the case of the petitioner that any such declaration has so far been secured. Therefore, interim direction as prayed for is not available to the petitioner.

This order was also confirmed by a division bench of this Court in The Arupukottai Devanga Arts College, represented by its joint Custodian Dr. P. Punnivanam v. State of Tamil Nadu represented by Secretary to Government Department of Education, Science and Technology, Madras and Anr. W.A. No. 850 of 1973, by order dated 25.1.1984. Further, another bench of this Court also, by order dated 11.9.1989 in Tamil Nadu Educational Medical Trust (Team Trust) by Secretary, C.L. Mehta v. Directorate of Collegiate Education, Madras and Ors. W.A. No. 182 of 1986, has also held likewise.

10. Further, since the lower appellate court has granted the injunction 'as prayed for' the said injunction restrains the respondents from enforcing all the above referred to provision of the Act and Rules thereunder. Learned Counsel for the Association of University teachers, Salem Sowdeswari college union, which got itself impleaded in this C.R.P., as second respondent argued that this amounts to staying of those provisions of the Act itself. He also submitted that as per the order impugned some of those sections which are admittedly applicable to minority institutions have also been so stayed. He also drew my attention to the Proviso to Section 113, Civil Procedure Code which provides that if a case involves a question as to the validity of any Act or any provisions contained in the Act, the determination of which is necessary for the disposal of the case and the court is of opinion that such Act, or provision is invalid or inoperative, but has not been so declared by the High Court, the court shall stale the case setting out the opinion and the reasons therefore, and refer the same for the opinion of the High Court.

11. Further the said learned Counsel also pointed out that from 1973 till 1986 the year of institution of the suit the plaintiff was following the provisions of the above said Act and that therefore on the institution of the suit the position as existed on the date of the institution alone should be followed. He also submitted that if the interim order is allowed to continue it would seriously prejudice the teacher's interest. Further, he also pointed out that the trust has also been obtaining exemption under Section 80-G of the Income-tax Act up to the year 1982 claiming that it is a public charitable trust intended to benefit not only any one particular community. The said counsel also rightly submitted that to decide the question whether the abovesaid college is a minority college entitled to protection under Article 30 of the Constitution of India, the fact that the abovesaid devanga community is a religious denomination entitled to protection under Article 26 of the Constitution of India, has no relevance.

12. In the circumstances, I consider that there is no prima facie case in favour of the first respondent and that the balance of convenience is also not in favour of the first respondent. For all the reasons stated above I set aside the order of the lower appellate court and restore the order of the trial court dismissing the abovesaid I.A. No. 5873 of 1986. However, I direct the suit in O.S. No. 2253 of 1986 to be taken up and disposed of as expeditiously as possible preferably within six months from the date of reopening of the court after summer vacation. Till the disposal of the suit, injunction restraining the appellants from taking over the college alone, would continue. Civil Revision Petition is allowed accordingly. No costs.

ORDER Abdul Hadi, J.

1. This civil revision petition is against the order dated 12.3.1987 in C.M.A. No. 200 of 1986 on the file of the Principal Judge, City Civil Court, Madras, reversing the dismissal order of the trial Court in I.A. No. 587S of 1986 in the suit and granting injunction prayed for in the said I.A. No. 5873 of 1986. The injunction prayed for in the said I.A. is to restrain the petitioners, the State and the Director of Collegiate Education, from interfering with the plaintiff-respondent's management and administration of Salem Sowdeswari College in any manner and to restrain them from enforcing Sections 5, 11 to 14, 14-A, 18(2), 19 to 22, and 30 of the Tamil Nadu Private College (Regulations) Act, 1976 (Tamil Nadu Act 19 of 1976)(hereinafter referred to as the Act) and Rules 12(3) and 4, 13 and 14 made thereunder and any order made in relation to Section 18(2), 19, 20 to 22 against the said college and to restrain them from taking any steps in pursuance of show cause notice dated 26th October, 1985 for the State taking over the said college.

2. The suit filed by the plaintiff-first respondent Sri Sowdeswari Mahajana Charitable Trust, Salem, is for (a) declaration that the said college is a 'minority college' under Section 2(7) of the above said Act, established by the Kannada speaking devanga linguistic minority community of Tamil Nadu for the benefit of Kannada speaking devanga community of Tamil Nadu and entitled to constitutional protection under Article 30(1) of the Constitution of India, that it is a denominational institution belonging to the above said community within the meaning of Article 26 of the Constitution of India, that the Constitution of college committee by the board of trustees of the trust contravenes Articles 26 and 30 of the Constitution of India and that the petitioners have no right to interfere with the said rights of the said community to manage the said college and for issuing consequential permanent injunction.

3. Before the abovesaid civil revision petition was taken up I suggested to the learned Advocate General appearing for the petitioners that instead of pursuing the civil revision petition the suit itself could be taken up and disposed of at very early date. But since the learned Advocate General preferred to have an order now in the civil revision petition I have heard the arguments of all the counsel in the civil revision petition and hereby pass the order thereon. Since the said C.R.P., arises out of the interim order passed in the suit, it is needless to say that my present order is also based on prima facie conclusions reached by me pending disposal of the suit.

4. The abovesaid college established in the year 1975, is admittedly run by the above said trust. No doubt, the said trust was founded and funded by Kannada speaking devanga community of Tamil Nadu under Ex. P. 2, dated 22.7.1973. The said Kannada speaking devanga community may be a minority community in this Stale. It may also be true that the said trust is managed and administered by trustees who belong to the said community alone all these years. Under the said trust deed the 16 founders therein shall be the first body of trustees of the above trust and they shall hold office for their lives. However it is also provided that it shall be open to the said body of trustees to co-opt five more persons to act as trustees with them, on the board, provided that such co-opted trustees shall continue in office only for 3 years from the dale of co-option. But it is not stipulated that the co-opted trustees should only be from the abovesaid community alone. Further though the object of the Trust inter alia is to establishments and maintain Colleges, it does not say that such establishments and maintenance must be for the benefit of the students of the abovesaid community alone. On the other hand, the trust deed provides, as one of its objects that the said trust should provide for scholarship to deserving students irrespective of caste, creed or religion and to provide work to unemployed persons without distinction of caste or creed or religion, by establishing technical centres and work-shops, etc.

5. While so, the settled law is that unless the institution is founded for the benefit of a minority community, Article 30 of the Constitution of India is not attracted to that institution and the institution will not be a minority institution entitled to protection under the said article Vide State of Kerala v. Mother Provincial . Section 2(7) of the abovesaid Act also says that 'minority college' means a private college established and administered, by any such minority whether based on religion or language as has the right to do so under Clause (1) of Article 30 of the Constitution. It has also been held in the judgment of this Court dated 12.9.1986 in S.A. No. 679 of 1982, relying on the decisions in Rajershi Memorial Basic Training School v. State of Kerala A.I.R. 1973 Ker. 87, and in A.P. Christian Medical College Educational Society v. Government of A.P. . that the mere management by the minority community is not enough to make the institution a minority one and the real test is whether the institution is established and administered for the benefit of the minority community.

6. But what is urged before me is that the said trust deed Ex. P. 2 was modified by the Rectification deed Ex. P. 37, dated 21st March, 1984, executed by 11 founded trustees out of the total original 16 trustees, whereby the original trust deed was retrospectively amended from 22.10.1973. In the said rectification deed it is stated four out of the original 16 trustees had died. But it is not stated why the other remaining trustee has not joined in the execution of the said deed. That rectification deed provides, in addition, the following objectives-

(i) to engage and so such acts for the amelioration and upliftment of Kannada-speaking devanga community, a linguistic minority community of Tamil Nadu, and

(ii) to extend to the persons belonging to Kannada speaking devanga community all such facilities and preferences in the educational institution etc., run by the trust.

It is also provided therein that the co-opted trustees shall only be from the kannada speaking devanga community as the said trust was founded and run by the charitable minded persons of Kannada speaking devanga community basically with the prime object of safeguarding the interest of the people of this linguistic minority community. It is also provided therein that the abovesaid provisions were made in the said deed in order to seek constitutional safeguards to the interest of the - Kannada speaking devanga community a linguistic minority of Tamil Nadu.

7. Whether such a rectification of the original deed could be made by the said 11 of the 16 founder trustees and whether the said rectification could be made retrospectively could be decided only in the suit. None of the counsel who argued before me cited any direct conclusive authority before me on this particular point. Anyway that can be decided only in the suit, particularly, after deciding the question whether only the said 11 trustees were alive, and, if other 4 were dead by then, why the remaining trustees did not join in the execution of the deed etc.

8. As the original trust deed stands, admittedly the trust and the college it runs are not for the benefit of the Kannada speaking devanga community of Tamil Nadu alone. The mere fact that only devanga community people were trustees so far, and only people of the said community were co-opted as trustees so far, cannot lead to the conclusion that the intention of the trust was only to benefit the devanga community people. The lower appellate court has erred in this aspect. It erred in observing that the fact that only devanga community has been co-opted as trustees, would prima facie lead support to the case of the appellant trust that the intention of the appellant trust was only to benefit the devanga community people. The original trust deed itself does not say that only devanga community people should function as trustees.

9. That apart, it has been held that pending declaration that an institution is a minority institution, it should be treated only as a non-minority institution, and all the provisions of the abovesaid Act should apply to it. By order dated 20.4.1983 in W.M.P. No. 1231 of 1983 in W.P. No. 896 of 1983, this Court observed as follows:

As held by the Division Bench of this Court unless the declaration is secured in a court or the concerned authorities themselves admit that a particular institution. (Sic.) provisions of Tamil Nadu Act 19of 1976 would apply. It is not the case of the petitioner that any such declaration has so far been secured. Therefore, interim direction as prayed for is not available to the petitioner.

This order was also confirmed by a division bench of this Court in The Arupukottai Devanga Arts College, represented by its joint Custodian Dr. P. Punnivanam v. State of Tamil Nadu represented by Secretary to Government Department of Education, Science and Technology, Madras and Anr. W.A. No. 850 of 1973, by order dated 25.1.1984. Further, another bench of this Court also, by order dated 11.9.1989 in Tamil Nadu Educational Medical Trust (Team Trust) by Secretary, C.L. Mehta v. Directorate of Collegiate Education, Madras and Ors. W.A. No. 182 of 1986, has also held likewise.

10. Further, since the lower appellate court has granted the injunction 'as prayed for' the said injunction restrains the respondents from enforcing all the above referred to provision of the Act and Rules thereunder. Learned Counsel for the Association of University teachers, Salem Sowdeswari college union, which got itself impleaded in this C.R.P., as second respondent argued that this amounts to staying of those provisions of the Act itself. He also submitted that as per the order impugned some of those sections which are admittedly applicable to minority institutions have also been so stayed. He also drew my attention to the Proviso to Section 113, Civil Procedure Code which provides that if a case involves a question as to the validity of any Act or any provisions contained in the Act, the determination of which is necessary for the disposal of the case and the court is of opinion that such Act, or provision is invalid or inoperative, but has not been so declared by the High Court, the court shall stale the case setting out the opinion and the reasons therefore, and refer the same for the opinion of the High Court.

11. Further the said learned Counsel also pointed out that from 1973 till 1986 the year of institution of the suit the plaintiff was following the provisions of the above said Act and that therefore on the institution of the suit the position as existed on the date of the institution alone should be followed. He also submitted that if the interim order is allowed to continue it would seriously prejudice the teacher's interest. Further, he also pointed out that the trust has also been obtaining exemption under Section 80-G of the Income-tax Act up to the year 1982 claiming that it is a public charitable trust intended to benefit not only any one particular community. The said counsel also rightly submitted that to decide the question whether the abovesaid college is a minority college entitled to protection under Article 30 of the Constitution of India, the fact that the abovesaid devanga community is a religious denomination entitled to protection under Article 26 of the Constitution of India, has no relevance.

12. In the circumstances, I consider that there is no prima facie case in favour of the first respondent and that the balance of convenience is also not in favour of the first respondent. For all the reasons stated above I set aside the order of the lower appellate court and restore the order of the trial court dismissing the abovesaid I.A. No. 5873 of 1986. However, I direct the suit in O.S. No. 2253 of 1986 to be taken up and disposed of as expeditiously as possible preferably within six months from the date of reopening of the court after summer vacation. Till the disposal of the suit, injunction restraining the appellants from taking over the college alone, would continue. Civil Revision Petition is allowed accordingly. No costs.

Link : https://www.casemine.com/judgement/in/5608ffc5e4b0149711152939