Madras Christian College vs The State of Tamil Nadu and Others

S. Nainar Sundaram, Actg. C.J.

The prayer in the writ petition runs as follows:

For the reasons stated in the accompanying affidavit, it is most respectfully prayed that this Honourable Court may be pleased to issue a writ of

declaration, declaring the Tamil Nadu Recognised Private Schools (Regulation) and Private Colleges (Regulation) Amendment Act, 1982 (48 of

1982) as ultra vires and unconstitutional in so far as the petitioners herein are concerned, and pass such further or other order or orders as this

Honourable Court may deem fit and proper under the facts and circumstances of the case and render justice.

The petitioner is indisputably a minority institution. Though the prayer is couched in wide terms, it was made clear to the Court that only the

provisions of Sections 14-A and 14-B of Chapter III-A introduced in the Tamil Nadu Private Colleges (Regulation) Act, 1976, hereinafter

referred to as the Act, by the Tamil Nadu Recognised Private Schools (Regulation) and Private Colleges (Regulation) Amendment Act, 1982, has.

given room for grievance for the petitioner. In fact, submissions both by the learned Counsel for the petitioner and the learned Counsel for the

contesting respondents centred around only on these provisions and nothing more. The very same provisions were the subject-matter of challenge

in The Society of the Brothers of the Sacred Heart of Jesus, Palayamkottai represented by Rev. Brother A. Arulprakasam, SMJ v. The State of

Tamil Nadu and Anr. W.P. No. 570 of 1983 etc batch, order, dated 12th August, 1991, and a Bench of this Court, to which one of us (Nainar

Sundaram, J., as he then was) was a party, held that the right to administer educational institutions of their choice preserved for minorities under

Article 30(1) of the Constitution will certainly be set, at naught by the said provisions. In the said pronouncement, the earlier judicial precedents at

the level of the Apex court of the land, have been taken note of and it was opined that the invoking of the said provisions would undoubtedly do

violence to the principles countenanced in the said judicial precedents. Being a co-ordinate Bench, that ruling must guide us, and if so guided, we

are obliged to accord appropriate reliefs to the petitioner.

However, Mr. K. Chandru, learned Counsel appearing for the third-respondent while raising a voice of contest, ventured to suggest two factors

so as to persuade us to say that the earlier pronouncement requires reconsideration. The first factor which the learned Counsel for the third-

respondent would advance is, that there is no immediate room for grievance for the petitioner to come to this Court seeking reliefs as he did in the

present writ petition. He would place reliance on a pronouncement of a Bench of this Court in Association of University Teachers Vs. State of

Tamil Nadu and Another, , to say that constitutional issues and constitutional validity of a statute or provision of the statute are not to be decided

for academic purposes and that unless the issue directly arises on the facts of a case before the Court, the determination of the same is necessarily

to be avoided. The said pronouncement is, of course, to the said effect What was attempted before the Court in that case was to challenge Section

32 of the Act which stated that the Government, notwithstanding anything contained in Chapter V of the Act, dealing with the control of private

colleges, shall not takeover the management of any minority college u/s 30. It was contended before the Court that the exemption granted in

respect of the minority institution has the effect of granting immunity even where it is totally mismanaged and the said provision is violative of Article

14 of the Constitution of India. We can only view the observations to the effect noted above as having been made by the Court, taking account of

the facts of that case. In the present case, we cannot say that we are called upon to decide the question for academic purposes only. By the

introduction of Chapter III-A into the Act by the Amendment Act provisions for appointment of Special Officer in certain cases get introduced and

certainly the petitioner need not await enforcement of the said provisions against it, and only getting offended by it, it could approach the Court. It

is not a case of this Court being called upon to determine academic questions or empty and barren technical rights. The rights claimed by the

petitioner are founded on Art30(1) of the Constitution of India. The very provisions introduced by the Amendment Act constitute an imminent

threat to that fundamental right Where the constitutional limits are transgressed by the law enacted this Court would be foiling in its duty, if it does

not intervene at least when the party to be affected approaches it. It is not always envisaged that before one could approach this Court, he must

actually get injured or offended by the enforcement of the Statute against him, despite the fact its constitutional invalidity stares at one''s face. The

very provisions present a perennial threat to the fundamental right and there is nothing wrong in this Court proceeding to delete the offending

provisions, without waiting for actual damages being done.

The second factor which Mr. K. Chandru, learned Counsel for the third-respondent, urged is that there was an omission on the part of the

earlier Bench to take note of some of the pronouncements which have spoken on the subject. Learned Counsel for the third-respondent drew our

attention to the following pronouncements in this behalf: (1) Christian Medical College Hospital Employees'' Union and Another Vs. Christian

Medical College Vellore Association and Others, (2) Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and

Others, and (3) J.A. Naidu and Others Vs. State of Maharashtra, . We have gone through the above pronouncements and yet we are not able to

say that taking note of them, there is a need for reconsideration of the view expressed by the earlier bench on the question. This being our

conclusion and view, we do not find any warrant to countenance the two factors, put forth by the learned Counsel for the third-respondent.

One more feature which the learned Counsel for the third respondent pointed out is that as per Section 14-B of the Act, there is ample and

adequate measure for redressal and relief even where the provisions of Section 14-A are invoked. When the provision is found to be

constitutionally ultra vires, it is no solace to advance a theory that appeal is a remedial measure and on that ground this Court shall not look into the

grievance of the petitioner founded on violation of Article 30(1) of the Constitution of India.

The result is that this writ petition is ordered in the following terms : We hold that Sections 14-A and 14-Bof Chapter III-A of the Act are not

applicable to the petitioner. We make no order as to costs.