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Judgment
Pratap Singh, J.—The plaintiff in O.S.463 of 1978 on the file of Principal District Munsif, Kuzhithurai, has filed this second appeal against
the Judgment in A.S. 178 of 1979 on the file of Additional Subordinate Judge, Kuzhithurai, in which the learned Subordinate Judge has confirmed
the judgment in O.S. No. 463 of 1978. Short facts leading to this appeal are:
The plaintiff has filed the suit for declaration that the plaintiffs high school is a minority institution entitled to protection under Articles 29 and 30 of
the Constitution of India and consequential injunction restraining the defendants from enforcing certain Sections and Rules in Tamil Nadu
Recognised Private Schools (Regulation) Act, 1973 and Rules framed thereunder on the following grounds:
The plaintiff is the owner and Manager of Educational Institution called High School Arumana which was started by the plaintiff''s father in 1941. It
was upgraded as a High School in 1948. It was started with the object of promoting Malayalam Language which is the language of the Nair
Community which constitute a linguistic minority in Kanyakumari District. After the merger of Kanyakumari District with the state of Tamil Nadu,
more divisions were opened in the school for imparting knowledge of Tamil. The Tamil Nadu Government passed Tamil Nadu Recognised Private
Schools (Regulations) Act, 1973. It had virtually taken the right of management and had vested it in a school committee. This Act of the
Government violates the fundamental rights guaranteed to the minorities under Article 29 and 30 of the Constitution. The Chief Educational Officer
of Kanyakumari District required the plaintiff by his communication dated 26.6.73 to comply with the provisions of the said Act. Aggrieved by this
direction, the plaintiff filed W.P.4945/75. It was resisted by the defendants who questioned the character of the minority institution. The writ
petition was dismissed on 4.10.76 giving opportunity to the plaintiff to file a suit within 11 weeks from the date of order for a declaration that the
school is a minority institution entitled to protection under Articles 29 and 30 of the Constitution of India. Hence the suit.
The defendants resisted the suit on the following grounds:
The school was not opened with an intention to promote Malayalam language. It is having one Malayalam section in each standard. The total
number of students in Malayalam Section is 132 whereas the total number of students in Tamil Section is 622 . The claim that intention of starting
the school has to promote Malayalam language is baseless. Since the school is not a minority institution, the management is expected to follow the
provisions contained in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, the plaintiff is not entitled to protection under Article
29 and 30 of the Constitution of India. Hence dismissal of the suit is prayed for.
After elaborate trial, the learned District Munsif had that plaintiff''s school is not a minority school, entitled to protection under Articles 29 and
30 of the Constitution and that the plaintiff is not entitled to declaration and injunction prayed for by him and has dismissed the suit. Aggrieved by
the same, the plaintiff A.S. 178/79 on the file of Subordinate Judge, Kuzhithurai. The learned subordinate Judge, after hearing the parties has
dismissed the appeal and thereby confirmed the judgment of the trial court. Aggrieved by the same, the plaintiff has come forward with this second
appeal.
The substantial questions of law that arose in this second appeal are:
Whether the courts below were correct in holding that the High School, Arumanai, managed by the appellant is not entitled to protection of
Article of the Constitution of India?
2) When ''minority school'' in Act 29 of 1974 is defined as a private school or its choice established and administered, or administered, by such
minority, whether based on religion or language as has the right to do so under Clause (1) of Article 30 of the Constitution of India, are the courts
below correct in saying that the private school has to be established by the minority?
Mr. G.S. Thambi, the Learned Counsel appearing for the appellant submitted that the school was started by the plaintiff''s father with the object
of promoting Malayalam language that plaintiff belongs to Nair community whose mother tongue is Malayalam and hence is a linguistic minority in
Tamil Nadu and the school was established and administered as a minority institution and hence plaintiff is entitled to declaration and injunction, as
prayed for by him. Per contra, Mr. B. Mani, the learned Government Advocate, appearing for the respondents, submitted that the school is not a
minority institution hence is not entitled to protection of Articles 29 and 30 of the Constitution of India.
The plaintiff figured as P.W. 1. He has stated that his father started the school in 1941 as a Middle School and later it was upgraded as High
School in 1947-48 and the school is conducted in promoting Malayalam language. He has further stated that he belongs to Nair community and
Malayalam is his mother-tongue and Nair community is a minority community. He has further stated that Malayalam was the only medium of
instruction in his school before merger in 1956 of this part of the country with Tamil Nadu and after merger, Tamil classes were opened and this
school is a minority institution based on language. Though in cross-examination, he has stated that he do not know for what purpose the school
was started, he has stated that the aim of starting the school is to benefit the Malayalis. The lower appellate court had held that at the time when the
school was started, it was in the Trivancore-Cochin State and only later it was merged with Tamil Nadu and has become part and parcel of
Kanyakumari District where Malayalam is a language of linguistic minority and that enable a person to get the protection of Article 30 of the
Constitution, the institution must have been established and administered by the minorities and in the instant case, it was not established by a
minority based on language in as much as at the time of starting of the school, this school was situated in erstwhile Trivancore-Cochin State where
Malayalam is the official language. The lower appellate court had relied upon the ruling of the apex court in S. Azeez Basha and Another Vs. Union
of India (UOI), In that case, the contention of the petitioner was that Aligarh University is a minority institution. The said University was established
by Central Legislation by Aligarh Muslim University Act, 1920. So it was held that it was not established by a religious minority but was later
administered by a religious minority and that to claim the benefit of Article 30 of the Constitution it must have been established and administered by
the religious minority and the words ''established and administered'' must be read conjointly. Mr. G.S. Thambi, would submit that in a case having
identical facts, this High Court has decided that such a school which was established in a erstwhile Trivancore-Cochin State which later became
part of Kanyakumari District is a school entitled to protection of 30 of the Constitution of India. In N. Pararneswara Kurup (Died) and Others Vs.
State of Tamil Nadu and Others, the school concerned in those cases were originally situated in the erstwhile Travancore-Cochin State. But later,
those portions of Travancore-Cochin State had merged with the State of Tamil Nadu by Central Act, 37 of 1956. The plaintiff who had
established those schools would contend that after merger with Tamil Nadu, the schools which were intended for the benefit of students of Nair
community and for the benefit of Malayalis in the State of Tamil Nadu and so they are entitled to protection guaranteed under Article 30(1) of the
Constitution. Article 30(1) of the Constitution of India reads as follows:
30 (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
It was submitted in the above case for the appellants that Kanyakumari District has been transferred to State of Tamil Nadu by States
Reorganisation Act (Central Act 37 of 1956) that these linguistic classes have been reduced to minority and therefore, they are entitled to
protection guaranteed under Article 30(1) of the Constitution of India. It was their further submission that the plaintiffs, who established those
institutions are managing the same and that therefore there can be no impediment to hold that the institutions are minority schools within the purview
of Article 30(1) of the Constitution of India. On that submission, Justice Maheswaran, had held as follows:
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 in-situation were not minority at the time
when the institutions were established, but later become 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.
The facts of the case before me are similar to the facts on which the above ruling was given by this Court. The plaintiffs evidence which I have
referred to supra would show that the aim of starting of the school was to benefit Malayalis and for promoting Malayalam language. So the plaintiff
is entitled to the protection of Article 30(1) of the Constitution of India.
The courts below have held that the plaintiff is not administering the institution as a minority for the purpose of promotion of Malayalam language
and that he is conducting the private school to promote his own interest. The admitted evidence is that there are Malayalam classes separately in
each standard. According to P.W. 1 Malayalam was the only medium of instruction in this School before merger in 1956 with Tamil Nadu and
thereafter. Tamil classes were also started. It is in evidence that students in classes in Tamil medium out number the number of students studying in
Malayalam medium. But that is not germane. In State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., , the apex court has laid as follows:
It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can
take advantage of these institutions. Such other communities bring in income and do not have to be turned away to enjoy the protection.
Further more, as per Act 29 of 1974, the minority school is one which is established and administered or administered by a minority. The
plaintiffs case comes within the ambit of this definition also and hence is entitled to the reliefs prayed for.
In view of the above, the plaintiff will have to necessarily succeed and get a declaration and injunction prayed for by him. In the result, the
second appeal is allowed, setting aside the judgments of the courts below and consequently the suit is decreed. In the circumstances of the case,
parties shall bear their respective costs throughout.