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A.K. Sengupta, J.—This application was moved in the year 1979 by Bhawanipur Gujrati Education Society, a Society registered under the West Bengal Societies Registration Act, 1961. The Bhowanipur Education Society College, a wing of the Bhowanipur Gujrati Education Society and the said College made this application against a Notice dated 26th April, 1979 issued by the Inspector of Colleges, University of Calcutta directing the Bhowanipore Education Society College to constitute/reconstitute the Governing Body of the said College according to the amended First Statute, 1979 of the University of Calcutta. Upon the said application, Mr. Sabyasachi Mukherji, J. (as His Lordship then was) was pleased to issue an interim order restraining the respondents from taking any steps and/or further step in terms of the said impugned Notice dated the 27th April, 1979. The said interim order was directed to be continued, till the disposal of the Rule.
During the pendency of the said Rule, another Circular was issued by the Inspector of Colleges, University of Calcutta on 13th April, 1983. A prayer was made by the petitioners to amend the said petition in order to challenge the subsequent notification regarding the constitution of the Governing Bodies of affiliated colleges. The said amendment was allowed.
The main contention of Mr. Ranadeb Chaudhuri, Senior Advocate appearing on behalf of the writ petitioners is that Bhowanipur Education Society College is a linguistic minority institution established in terms of Art. 30(1) of the Constitution and accordingly, none of the said Circulars/Notices, impugned herein, can be made applicable to the said College.
Before I deal with the contentions raised by the petitioners, it is necessary to refer to how the College was established and administered which will have a bearing on this question.
The Bhawanipur Gujrati Education Society was granted affiliation by the Calcutta University in the name of the Bhawanipur Education Society College administered by the first petitioner Bhawanipur Gujrati Education Society. The affiliation was granted by the Calcutta University by letter dated July 28, 1966 in the various subjects in B. A. Pre-University, B.Sc. and B. Com Course. The said affiliation was granted, on the basis of an inspection report filed by a Commission set up by the University of Calcutta.
Subsequently on or about December 18, 1963 the name of the said Bhawanipur Gujrati Education Society was changed to the Bhawanipur Education Society and the said Bhawanipur Education Society was recorded with the Registrar of Firms with the name as altered aforesaid. On April 22, 1979 the name of the Society was again changed to the Bhawanipur Gujrati Education Society and the said name was recorded with the Registrar of Societies, West Bengal. Various persons, all Gujratis, were members of the Central Committee of the said Society as on June 28, 1979 as stated in para 5 of the writ petition.
The College in question was set up with the idea of providing educational facilities to a large cross section of Gujrati students who were residents in the city of Calcutta. Later on and gradually members of other communities were also granted admission into the said institution.
At ail materials times the said Society was run and/or established by the linguistic minority, to wit, Gujrati Community and one of the principal objects of the said Society is to impart education, especially in Gujrati and generally in other languages and to promote educational activities and solely for the said purpose. At all material times the membership of the said Society is confined to a.person who has attained the age of 21 years and whose tongue is Gujrati or who can read, write or speak Gujrati will be eligible to become a member of the Society provided such person is neither an employee of the Society or the institution run by the Society nor a student of any of the institutions run by or under the supervision of the Society at the time of the application for ordinary membership. It is the case of the petitioners that the said Society being established by the members of a liguistic minority, to wit, the Gujrati Community, in the State of West Bengal shall have and/or has the right to establish and administer educational institutions of their choice in pursuance of Art. 30 of the Constitution of India. The said right to establish and administer the educational institution created by the linguistic minority has been preserved at all material times by or under the Statute 100 of the Calcutta University Statutes, 1966 made under the Calcutta University Act, 1966.
Reference may be made to Clause 31(a) of the Memorandum of Association of the Society which is as follows-
3.1 The principal object of the Society is to impart education, specially in Gujrati and generally other languages, and to promote educational activities and solely for this purpose to carry out any of the following activities-
(a) To make provision for, advance the case of, and impart primary, secondary, higher, commercial, industrial, technical physical and all or any other type or kind of education.
Clause 6 and 77 of the said Memorandum are as follows -
The ownership, management an control of all the moveable and immoveable properties of the Society such as lands, buildings, fixtures etc., shall entirely vest with the Board of Trustees of the Society.
The management and control of the affairs of the Society shall vest with the Central Committee. The day-to-day affairs of the institutions run by the Society shall be managed by the respective Governing Body, the Managing Committee or any other Committee, as the case may be, under control and supervision of the Central Committee. The name, occupation and address of the members of the Central Committee as on the date of the adoption of these presents are as follows-
Sl. No.
Name
Occupation
Residence
1.
President Shree Gopaldas Toolsidas
Industrialist
6/1, Wood St., Calcutta-16.
2.
Vice President Shree Rambhai Patel
Industrial list.
1/7, Rowland Road, Cal-20.
3.
Hon. Secretary Shri Kanubhai Bhalaria
Social Worker
14, Southern Avenue, Cal-26.
4.
Hon. Jt. Secretary Shree Harshad Valia
Businessman
8B, S. P. Mukherjee Road, Cal-25.
5.
Members Shree Bhatibhai Doshi
Businessman and Social Worker.
4/1, Justice Dwarkanath Rd. Cal-26
6.
Shree Jugalkishore Maheshwari
Social Worker
21, Chittaranjan Avenue, Cal - 13.
7.
Shree Jayantibhai Mehta
Social Worker
20, Rammohan Dutta Road, Cal - 20.
8.
9.-
Smt. Shantaben Patel
Smt. Subhadraben Kapadia
Educationist and Social Worker Educationalist and Social Worker
30B, Poddapukur, Rd, Cal - 20. Lansdowne Court, First Floor,
5, Sarat Bose R1., Cal-20
10.
Shree Pravinbhai Shah
Businessman
30, Elgin Rd. Cal-20
11.
Shree Manibhai Mehta
Businessman
Flat No. 5, 2nd Floor, 37B, Southern Avenue, Calcutta - 29.
12.
Shree Harshed Naik
Chartered Accountant
38B, Dr. Rajendra Road, Cal - 20.
13.
Shree Maharbhai Vora
Businessman
4A, Roy St., Cal-20.
14.
Shree G. Teher
Businessman
Radherian Building, 21, Zakaria St., Cal-1.
15.
Shree Nalin Patel Principal
Educationalist and Service
17/2/4B, Charaberia Rd. (South) Cal- 20.
It is thus evident that the Managing Committee is to function under the "Central Committee of the Society. It may be mentioned that the signatories to memorandum and Articles are all Gujratees.
The said Society is administered by a Managing Committee separately set up and described as Governing Body. All members of the Committee are Gujratees including the Principal except two teachers representatives.
At all material times the day to day management and affairs of the said Society was vested in the aforesaid members of the Central Committee. The day to day affairs of the Institution (College) run by the said Society at all material times has been managed the respective Governing Body and/or the Managing Committee or any other Committee as the case may be under the control and supervision of the Central Committee. At all material times all the movable and immovable properties of the said Society have been vested in the members constituted and/or appointed under the Memorandum of Association of the said Society and the said trustees have been seized of all the proprietory rights in relation to the said movable and the immovable properties belonging to and/or forming part of the said Society.
At all material times the Bhawanipur Education Society College is one of the wings of the Bhawanipur Gujrati Education society and the management of the said college has been vested in the Governing Body under the direct supervision of the Central Committee, The persons named in para 6A of the petition are the members of the Governing Body of the said college. The persons named in para 7 at pp. 26 and 27 of the petition are the present Trustees of the said Society.
At all material times the said Society premises situate at No. 5, Elgin Road, Calcutta-20 comprises inter alia the following sections of the said College and other institutions and libraries and book stalls -
A. i) Sri J. Dossa, Science Section
ii) Sri P. J. Gundhi, Commerce Section
iii) Sri Girdharlal Hansraj Kumari and Sri Kanti Parachand Shimani - Arts. Section.
iv) Matushri Rajbhai Dharamshai and Srimati Parbatibhai Sonthia, Woman Section.
B. Sri J.J. Ajmer - High School.
C. Sree Sree Laxmi Narayan Deo Trust Primary School.
II. Bhawanipur Education Society Book Stall.
III. Sri Nandalal Parekh Grantnagar.
IV. Any other educational institutional activities that may be started for the welfare of the society anywhere in India.
The petitioners contended that inasmuch as the said Society has been registered under the relevant provision of the West Bengal Societies Registration Act, 1961 as aforesaid and has been granted affiliation by or under the relevant provision of the Calcutta University Act prior to 1966 the rights and privileges enjoyed by the said Society under the Acts and/or rules and/or regulations made thereunder of the Calcutta University prior to 1966 of the said rights and privileges has been preserved and guaranteed by or under relevant provisions of the Calcutta University Act, 1966.
At all material times the Governing Body of the said Society of the said College had been constituted in pursuance of the Deed of the Society and pursuance of the Statute 100(1) of the Calcutta University Act, 1966 preserving the said rights of the Society has been at all material times approved by the University authority. A copy of the letter dated 12/6/197.0 bearing reference No. C/14046/ 164 G.B. addressed by the Calcutta University to the Secretary of the Society containing the aforesaid approval and/or confirmation of the University is annexure "D" to the main writ petition. In the circumstances aforesaid, it is the case of the petitioners, that the respondents are estopped from denying the said approval and/or confirmation by the doctrine of the promissory estoppel.
Application for affiliation also mentioned Gujrati was one of the special subjects to be taught. Affiliation was granted by the University in Gujrati in every group.
Originally, until the temporary Statute of 1977 was passed, the Society being a registered Society under the Societies Registration Act was governed by a body constituted under Statute 100 and not by statute 93. This was under 1966 Act, and the Statute framed thereunder.
On or about April 30, 1979 the petitioners received the impugned notice No. C/3298/164 G.B. dated April 27, 1979 along with the copy of the impugned notification bearing reference No. CSR/l/79 dated April 13, 1979 addressed to the respondent No. 2 under certificate of posting by the Inspector of Colleges, Calcutta University i.e. respondent No. 4 whereby the said Society was asked to reconstitute the Governing Body in terms of the said impugned notice and the impugned Notification within June 30, 1979. It is contended that the said impugned notice and the impugned notification has been sent to the said Society in violation and/or in breach of their rights and privileges guaranteed under the relevant provisions of the Calcutta University Act inasmuch as the said Society has been established by the liguistic minority of the State, to wit, the Gujarati community and the membership of the said Society is confined to Gujrati speaking people as aforesaid is protected by Articles 29 and 30 of the Constitution and even by statute 100(1) of the pretended amendment under challenge in the present proceeding.
At this stage it is necessary to set out the two notices and/or notifications issued by the Inspector of Colleges, Calcutta University regarding the constitution and/or reconstitution of the Governing Body of the said College.
From - The Inspector of Colleges, Calcutta University,
Senate House, Calcutta'' -12.
No. C/3298/164/G. B. The 27th April, 1979.
To
The Secretary, Bhowanipore Education Society College
Sir/Madam,
I am directed by the Vice-chancellor and Calcutta University Council to inform you that the Chancellor has been pleased to assent to the Changes in the Statute 93(1) and 100 of the Calcutta University First Statute 1966 relating to constitution of Governing Bodies of Colleges and insertion of a new Statute 100A, which has already been adopted by the Calcutta University Council.
A copy of notification No. CSR/ST/1/79 dated the 23rd April, 1979 is enclosed herewith.
You are therefore, requested to take necessary steps to constitute/reconstitute the Governing Body of the College according to the above amended statutes now in force and report to us. If we do not hear from you by the 30th June, 1979 the University will take necessary steps as per statute 100A.
Yours faithfully, Sd/P. B. Dutt, 26/4/79. Inspector of College (Offg.)
CALCUTTA UNIVERSITY Notification No. CSR/ST/1/79
It is hereby notified for general information that the Chancellor has been pleased to assent to the following changes in the statute 93(1) and 100 of the Calcutta University/First Statute 1966 relating to constitution of governing bodies of the Colleges and insertion of a new statute 100A to the said First Statute which has been adopted by the Calcutta University Council.
A. In Statute 93, in paragraph (I), -
(a) after the word and figures "Statute 100", insert the words, figures and letter "or Statute 100"
(b) For clause, (e) substitute the following clause -
(e) not more than three members to be nominated by the Vice-chancellor in consultation with the Pro-Vice-Chancellor for Academic Affairs from among the donors of the Colleges, if any Provided that such members shall include persons required to be included in the Governing Body of the College under the terms and conditions of donations to the College;
Provided further that after the commencement of these Statutes, no condition shall be attached to any donation to a college requiring representation of the donor in the Governing Body of the College;
Provided also that no teacher or the employee of the College, who is a donor shall be nominated as such member.
B. In Statute 100, in paragraph (I), for the words "continue as such", substitute the words" continue as such, provided that such college is a college established and administered by a minority, whether based on religin or language, or by a religious denomination or any section thereof."
C. After Statute, 100 insert the following Statutes -
Transitional provision 100A(I) within six weeks of the commencement of this Statute a College managed by any Trust or Registered Society or under a Scheme laid down by a competent Court, not being a college established and administered by a minority, whether based on religion or language, or by a religious denomination or and section thereof, shall cause to be constituted a fresh Governing Body in accordance with the provisions of Statute 93.
(2) Any notice in this behalf in writing, sent by the University to the Secretary or the President of the Governing Body of such College shall be deemed to have been duly served on the Governing Body of the College.
(3) If the Governing Body of such College is not constituted within the period referred to in paragraph (1), the Vice-chancellor may appoint an administrator to take over the management of the College. The administrator shall cause to be constituted a fresh Governing Body within six weeks from the date of his appointment in accordance with the provision of Statute 93.
(4) For removal of doubt it is hereby declared that notice the standing any failure of the State Government or the Vice-chancellor to nominate any member or members under Clause (c) or Clause (e), as the case may be, of paragraph (1) of Statute 93, the constitution of a Governing Body under this Statute shall be deemed to be complete.
Senate House, Dated 23rd April, 1979 Calcutta.
M. Bose Registrar (Actg.)
The notice dated 13th April, 1983 is in following terms -
No. C/174/G. B.
Senate House,
UNIVERSITY OF CALCUTTA Calcutta-7ooo73
The 13th April, 1983.
From - The Inspector of Colleges, Calcutta University'' Calcutta
To
The Principals of all affiliated Colleges other than Government Colleges and Colleges within the ambit of Statute 100.
Dear Sir,
I have to invite a reference to this office circular No. C/172/G. B. dated 24/2/83 regarding constitution of the Governing Bodi''es of affiliated Colleges other than the Government Colleges and Colleges within the ambit of Statue 100 and to state that Statute 100 as reproduced in the aforesaid circular may please be deemed to have been cancelled and replaced as follows -
100(1). Special provision regarding Governing Bodies of Certain Colleges.
In the case of College managed by any Trust or Registered Society or under Scheme laid down by a competent Court, the constitution of the Governing Body shall, in so far as the terms and conditions of such Trust, Article and Memorandum of Association of such Registered Society or such Scheme, as the case may, so require, continue as such, provided that such College is a College established and administered by a minority, whethere based on religion or language or by a religious demonination or any section thereof. Provided that, after the commencement of these Statutes, the terms and conditions of any such Trust,, the Articles and Memorandum of Association of any such society or any such scheme shall require, the approval of the Syndicate before such Trust is created, such society is registered or such scheme is submitted to the Court.
(2) The provisions of the Statutes 94 to 99 shall apply to a College referred to in paragraph(1), in so far as such provisions are not inconsistent, as the case may be, with the terms and conditions of the Trust, the Articles and Memorandum of Association of the Registered Society or the Scheme concerned.
I am, therefore, to request you to kindly take necessary action in the matter, where necessary and if not otherwise ordered by the Court of Law, keeping in view the correct version of Statute 100 as quoted above.
Yours faithfully, Sd/- S. Chakraborti 13/4/1983 Inspector of Colleges (Offg.)
Calcutta University (Temporary Supersession) Act, 1978 superseding 1966 Act was enacted for a temporary period. Right to administer under Statute 100 of the previous Act was withdrawn and the petitioners were directed to reconstitute the Governing Body under Statute 93 framed under the 1978 Temporary Act, Writ petition was originally filed challenging the notice under the Temporary Act in the background of Arts. 29 and 30, as mentioned hereinbefore.
The Temporary Act lapsed thereafter. There was no saving clause. The petitioners were allowed to amend the previous petition and to invoke Art. 30(1) challenging the subsequent Notification dated 13th April, 1983 purported to have been issued under the Act of 1979.
There is no dispute that the Gujrati Education Society has established and is administering several minority Linguistic Institutions in Calcutta.
The objection which has been raised by the Id. Counsel for the respondents is that whether a College or an Institution is established and/or maintained by a religious or linguistic minority is invariably and absolutely a question of fact and it cannot be decided in the writ jurisdiction. It is the case of the respondents that the amendments in question are not affecting or prejudicing any right or any interest of the petitioners with respect to their properties. The Governing Body if constituted will mostly perform their duties with regard to academic affairs of the College. It is the case of the respondents that when the College is affiliated to the University, the University under the law should have some control and should be concerned with the Constitution of the Governing Body of the College.
It is also contended that it is a matter on record that the College is a secular College and open to all communities and the medium in all faculties is exclusively English as would appear from the prospectus published and circulated by the College. Hence the instruction to form Governing Body taking representation and/or haying representation of the donors is highly democratic and beneficial for the College itself and hence such instruction cannot be assailed as malafide or illegal or bad. It will not affect the properties or assets of the College.
The contentions cannot be accepted. That the said College is established by Gujrati Education Society, a linguistic minority community in Calcutta, has not been disputed and cannot be disputed. It has its own Memorandum and Articles of Association, which I have already referred to.
It is the case of the writ petitioners that the impugned notice of 13th April 1983 is ulra vires and mandatory requirements and conditions u/s 51 of the Act of 1979 have not been complied with in introducing deeming provision. Even under the pretended deeming provision the petitioners are exempted.
It is also contended that it also violates Article 29 and 30 of the Constitution. Temporary Supersession Act 1978 expired on 31/12/1979. The Act of 1966 and Statutes framed thereunder revived to the extent that new Act of 1979 was not brought into operation. Only Sections 1 and 2 were brought into operation with section 59(2).
I have considered the rival contentions. The respondents have admitted that this College is being administered by a minority linguistic community. The acts and conduct of the respondents would also support the minority character. Gujrati language has been referred to not only in the application for affiliation but also in the formal affiliation granted by the University.
In my opinion admission of non-Gujrati students is of no consequence. Even if the students do not read Gujrati language, it will not in any way affect the status of the Institution. The only requirement under Article 30(1) is whether the Institution has been established and administered by the liguistic minority or not.
My attention has been drawn to the decision in Bhagwandas Haralalka v. State of West Bengal & Ors., reported in (1986)1 CLJ 293. There it has been held that constitutional protection under Arts 29 and 30 would be available to any educational institution established by the minority community of Hindi speaking people in demanding special constitution for administration of the School. There all the relevant judgments of the Supreme Court were considered on this issue. Reliance has been placed in the case of Rev. Father W. Proost and Others Vs. The State of Bihar and Others, . There the learned Attorney-General while conceding that the Jesuits answer the descripting of minority based on religion, argues that the protection is available only if the Institution was founded to conserve "language script or culture" and since the College is opened to all sections of the people and there is no programme of this kind, the protection of Article 30(1) is not available. The Supreme Court repelled that contention. The question, was whether the College could only claim protection of section 48B of the Act read with Art. 30(1) of the Constitution if it proves that the Colleges is furthering the rights mentioned in Art. 29(1). There the Supreme Court has held that the choice is not taken away if the minority community of its choice also admits member of other Communities. There the learned Attorney-General placed real importance on the word "sprinking" and submits that the minority must found the institution for itself and not for others and the aim or subject must be to conserve distinct language, script or culture.
There Supreme Court observed :
The fundamental freedom is to establish and to administer educational institutions; it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of the citizens or sections thereof.
The emphasis here was rightly placed not upon the needs of the community exclusively but upon the educational needs of the citizens of sections thereof. In other words, the suggestion that Article 30(1) is limited to the needs of a single community or that only its own culture/language or script need to be provided for is not the right approach. Here too if we may say so, the point decided was different but the observation does make article 30(1) much wider than the learned Attorney General would have us hold." There the Court ultimately held that St. Xavier''s College was founded by a Catholic Minority community based on religion and the said educational institution had the protection of Art. 30(1) of the Constituion.
Reliance has also been placed in the case of The Right Rev. Bishop S.K. Patro and Others Vs. The State of Bihar and Others, . There the question involved was whether the writ petitioners and the appellants were entitled to claim the protection of Article 30 of the Constitution. There it has been held-
It is necessary to bear in mind the difference in the phraselogy used in Articles 29 and 30 of the Constitution. By Article 29(1) any section of the citizens residing in the territory of India or any part thereof having a distinct languages, script or culture of its own.
Art. 30 guarantees the right of minorities to establish and administer educational institutions, the article Joes not expressly refer to citizenship as a qualification for the members of the minorities. In Rev. Father W. Proost and Others Vs. The State of Bihar and Others, the Supreme Court observed:
In our opinion the width of Article 30(1) cannot be cut down by introducing in it considerations on which Art. 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The two articles created two separate rights although it is possible that they may meet in a given case." The Supreme Court further observed, after referring to the judgment in Rev. Sidhajbhai Sabhai and Others Vs. State of Bombay and Another, that :
...the language of Article 30(1) is wide and must receive full meaning. We dealing with protection cannot be allowed.
Ultimately the order passed by the Educational authorities requiring the Secretary of the Church Missionary Society Higher Secondary School to take steps to constitute a Managing Committee in accordance with the order dated May 22, 1967 was declared invalid.
Reliance has also been placed in State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., . There it was contended that there is an attempt to interfere with the administration of those Institutions and this is an invasion of the fundamental right. The minority communities further claim protection for their property rights in institutions under Article 30(1).
There it has been held -
Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights are separated in point of time. The first right is the initial right to establish institutions of the minority''s choice. Establishment here means the bringing into being of an institution and it must be by a minority.
Reliance was also placed in the case of D. A. V. Colleges, Jullundar v. The State of Punjab & Ors., reported in AIR 1971 SC 1937. There the question was, have the petitioner been established and administered by a religious or linguistic minority, having a distinct script or culture of its own within the meaning of Articles 29(1) and 30(1) of the Constitution and do the provisions of the Act or any Statute or ordinance or Notification made thereunder offend any of the rights guaranteed. This is turn lends to an enquiry whether, the Arya Samaj is a religious or linguistic minority. Hidyatullah, C.J., rejected the interpretation sought to be placed on Arts. 29(1) and 30(1) as if they have to be read together. At page 80 he has observed:
In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Art. 29(1) is based The latter Article is a general protection which is given to minorities to conserve their language script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstances irrelevant for the application of Article 30(1) since no such limitation is expressed and nine can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case." There the Supreme Court has also observed as follows:
It is undisputed, and it was also conceded by the State of Punjab, that the Hindus of Punjab are a religious minority in the State though they may not be so in relation to the entire country. The claim of Arya Samaj to be linguistic minority was however contested. A linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language. It is not necessary that language should also have a distinct script for those who speak it to be a linguistic minority. There are in this country some languages which have no script of their own. But nonetheless those sections of the people who speak that language will be a linguistic minority entitled to the protection of Article 30(1).
Reliance has also been placed in the case of The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, . There the Supreme Court observed as follows:
It will be wrong, to read Art. 30(1) as restricting the right of minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with language, script or culture of the minorities.
It will be wrong to read Art. 30(1) as restricting the right of minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with language, script or culture of the minorities.
In Daughters of the Cross & Anr. v. State of West Bengal & Ors., reported in 82 CWN 358, this Court observed as follows:
Article 30 protects the rights of the minorities based on religion or language to establish as well as to administer educational institutions of their choice. The right is two fold as has been explained in several decisions of the Supreme Court. The right to establish of their choice, such institutions, however, need not be confined to the children of the minority community; indeed it has been reiterated by the Supreme Court that it is in connection with the outside world that the excellence of the children of the minority community and of their culture can best be developed. The right in clause (1) of Article 30 also is not limited to the manner in which such educational institutions should be administered, not as I have mentioned before the right is limited to the educational institutions where predominantly children of minority community are educated or trained. At one point of time a doubt had arisen in my mind as to whether Article 30 was to protect only the minority community in maintaining its own linguistic or religious identity and therefore must be confined to the institutions were predominantly children of the minority community are educated. But in view of the language used in that article of the Constitution and in view of the decision of the Supreme Court it appears to me that the framers of our Constitution in their wisdom had given to the minority communities, linguistics and religions, right to administer exclusively without interference educational institutions of their choice even though the said institutions cater for predominantly the children of the majority community. That right flows from the clear language used in clause (1) of Article 30 of the Constitution. Clause (1) of Article 30 does not restrict the right to administer educational institutions of their choice where only children of the minority communities are educated.
Reliance has also been placed in the decision of the Supreme Court in the case of Lily Kurian Vs. Sr. Lewina and Others, . There the Supreme Court held that unlike Art. 19(1) of the Constitution the fundamental freedom under Art. 30(1) is absolute in terms. It is not made subject to any reasonable restrictions of the nature the fundamental freedom enunciated in Art. 19 may be subjected to. All minorities, linguistic or religious have by Art. 30(1) absolute right to establish and administer educational institutions of their choice and any law or executive direction which seeks to infringe the substance of that right under Art. 30(1) would to that extent be void.
There it has been observed as follows:
Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority''s choice enshrined in Article 30(1) means "Management of the affairs" of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for mala administration. Regulation so that the right to administer may be better exercised for the benefit of the institution is permissible, but the moment one goes beyond that and imposes, what is in truth, not a mere regulation butan impairment of the right to administer, the article comes into play and the interference Cannot be justified by pleading the interest of the general public. The interests justifying interference can only be the interests of the minority concerned.
Reference has also been made to the case of Iyer Memorial Educational Society & Ors. v. The State of West Bengal & Ors., reported in (1980) 2 Calcutta High Court Notes 254. There it has been observed as follows:
The law on the subject is therefore absolute clear. Under the article 30(1) of the Constitution of India the religious and linguistic minorities have a right not only to establish but to administer their educational institutions. That right may be subject to certain regulatory measures in the interest of public health, sanitation, maintenance of academic standard and so on. But those regulations must not amount to restriction. If it does, it will be violative of Article 30 of the Constitution of India.
In the light of the principles laid down in the aforesaid decisions the validity of the notifications dated 27th April, 1979 and 13th April, 1983 has to be decided. I have already set out the notifications. The notification dated 27th April, 1979 however has been superseded by the notification dated 13th April, 1983. In my view the purported notifications are beyond the powers of the University. By the said notifications rights of the linguistic minority institution guaranteed by Art. 30(1) of the Constitution have been taken away. In other words, the said notifications are inconsistent with Art. 30(1). It the said notifications containing provisions regarding the linguistic minority institutions are given effect to, the same would offend Article 29 and 30 of the Constitution. It cannot be disputed on the facts of this case that Bhowanipore Education Society College being a linguistic minority institution is protected by Art. 30(1) of the Constitution and as such no direction can be given to the College authorities to form Governing Body which is contrary to the Memorandum, Rules and Regulations of the Society.
In the view I have taken it is not necessary to decide whether the notifications dated 27th April 1979 or the notification dated 13th April 1983 is ultra vires for alleged non compliance with mandatory requirements and conditions of Section 51.
For reasons aforesaid this application succeeds.
The University Authorities are restrained any effect to or in acting in furtherance of or in pursuance of the impugned Notices bearing No. C/3298/64 G.B. dated April 27, 1979 and C/174/G.B. dated 13/4/83 so far as the Bhawanipur Gujrati Education Society is concerned, in other words, these two notifications will not apply to the said College and those cannot be made applicable to the said College.
The Rule is, therefore, made absolute to the extent indicated above.
There will be no order as to costs.