State of Tamil Nadu and 3 others vs S.R.M. Subburamier, Secretary and Correspondent of Sourashtra Middle School, Nilakottai

Abdul Hadi, J.—The defendants are the appellants. The suit filed by the respondent, who is the Secretary and Correspondent of Sourashtra

Middle School, Nilakottai is for a declaration that the respondent''s school is a minority school as per the provisions of Act 29 of 1974, viz., the

Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules framed thereunder and for consequential permanent injunction

restraining the defendant from enforcing certain specific provisions of the above said Act and Rules, on the respondent''s school. The Trial Court

granted only the above said declaration prayed for, but dismissed the suit with reference to the above said injunction relief prayed for. As against

the said decision of the Trial Court, there were two appeals, viz., A. S. Nos. 207 and 208/1980 before the lower appellate court one by the

defendants State of Tamil Nadu and its authorities and the other by the plaintiff. The 1st appeal by the defendants is against the declaration granted

and the other appeal by the plaintiff is against the refusal of the in Junction relief. The lower appellate court, which heard the said two appeals

together, dismissed both the appeals. As against the dismissal of AS. No. 207/1980 filed by the defendants, this Second Appeal has been

preferred and in this Second Appeal, the Cross Objection has been filed by the plaintiff seeking the above said injunction relief. Quite similar to the

question involved in this second appeal, there were also two other second appeals, viz., S.A. Nos. 15 and 25 of 1981. There also, the question

was whether the institutions therein were minority institutions, entitled to the benefits of the protection under Art. 30(1) of the Constitution of India

and for consequential injunction. There also, as in the present case, the question was, whether the institution in question was founded by a linguistic

minority, viz., the Sourashtra Community. Those Second appeals were disposed of by judgment dated 14.3.1988. The learned Additional

Government Pleader fairly represents that the said decision would govern the present case also and that accordingly this second appeal also may

be dismissed. Therefore, pursuant to the said representation and after going through the said judgment dated 14.3.1988, this second appeal is

dismissed.

In so far as the above said Cross Objection in this second appeal is concerned the learned counsel for the Cross Objector points out that the

Court below has erred in stating that it is only the High Court, that can decide as to whether any one of the impugned provisions of this Act would

violate the constitutional rights guaranteed to the minority institution. On that reasoning, the lower appellate Court has refused the injunction relief.

The injunction that is prayed for is to restrain the defendants from enforcing certain specified provisions of the above said Act and Rules, since

they are said to violate the Constitutional rights guaranteed under Art. 30(1) of the Constitution of India. It is not correct to say that only the High

Court can decide such a question. S. 113 of the CPC also gives an indication in this aspect. The Proviso therein says that when such validity

question arises, the subordinate Court shall state a case setting out its opinion and the reasons there for and refer the same for the opinion of the

High Court, if in its opinion, the relevant Act or Rule is invalid, out has not been so declared by the High Court to which that court is subordinate,

or by the Supreme Court. It has also been held in M. Subbaraja Mudaliar Vs. Commissioner of Income Tax and Another, that such a reference

could be made only after the Court records its prima facie finding that the impugned Act or Rule is bad. Further, where the above said High Court

or the Supreme Court had already declared an Act or Rule as invalid or inoperative, there is no bar for the subordinate Court, to apply the said

decision of the High Court or the Supreme Court to the case in hand before it. So, the lower appellate court is clearly in error in having proceeded

on the footing that there is a complete bar for the Subordinate Courts to go into such a question.

However, whether really the application of the above said specified provisions will be consequential to the declarative decree that has been

granted, has not been found by the Courts below. At any rate, I do not think it is necessary to decide that question since an injunction could be

granted generally as a consequence of the declaration decree granted. Accordingly, I hold that the plaintiff is entitled to the consequential

permanent injunction restraining the defendants, their men and officers from enforcing any statutory provision which would affect the plaintiffs

School''s character as a minority institution. Therefore, the Cross Objection is partly allowed, granting the permanent injunction, only as indicated

above. In the circumstances of the case, there will be no orders as to costs, both in the second appeal and in the Cross Objection.