Trust Association of Convention of Baptist Churches of Northern Circars vs State of A.P. and others

This writ petition is filed by one Marrella Prasada Rao claiming to be Secretary and Attorney Holder of the Trust Association of Convention of Baptist Churches of Northern Circars. The relief claimed in the writ petition is for a Writ of Certiorari calling for the records relating to G.O.Ms.No.234 Education (PS-1) Department, dated 24-6-1995; and for quashing the same as illegal, arbitrary and in violation of principles of natural justice and Article 30(1) of the Constitution of India.

The facts in brief are as follows:

One Mr.Mclaurin on behalf of Canadian Baptist Mission acquired extensive properties at Kakinada and other places. The said Mission was running Mclaurin High School, Church and other institutions. The total extent of land owned by the Mission is 30 acres. The properties were transferred in 1974 to the Trust Association of Convention of Baptist Churches of Northern Circars in Q.P.No.15 of 1974 on the file of the High Court of Judicature of Madras and since then the said Association is the owner and possessor of the properties of the Baptist Mission in Kakinada.

In 1986 the Management of Mclaurin High School was taken over by the Government u/s 60(1) of the Andhra Pradesh Education Act, 1982 (for short ''the Act''), underG.O.Ms.No.218, dated 8-5-1986. The Association filed WP No.6776/86 questioning the validity of the said G.O.Ms.No.218 dated 8-5-1996 on the ground that the School is being run by a religious institution and without its consent the Management of the School cannot be taken over by the Government. The said writ petition was dismissed on 10-2-1989 without going, into the merits by observing that as the Special Officer appointed had already assumed charge for managing the affairs of the institution, the petitioner cannot agitate the same. Thereafter, G.O.Rt.No.262, dated 3-3-1988 was issued proposing to acquire the property relating to Mclaurin High School for public purpose connected with the education and called upon the association to show-cause why it should not be acquired u/s 67(1) proviso of the Act. The Association sent an explanation to the said show-cause notice. Without giving an opportunity to the Association, the Government issued G.O.Ms. No.523 (Education), dated 19-12-1988. Challenging the said G.O. Writ Petition No.2815 of 1989 was filed. By Judgment dated 9-3-1990 the writ petition was allowed directing the 1st respondent to hear the oral representation of the petitioner. Thereafter there were number of dates of hearing and the Association was represented by an Advocate. The arguments were heard by the then Secretary of Education Department. Later on the said Secretary was transferred and the matter was pending without any adjudication.

On 14-4-1993 the Advocate sent a letter stating that there is a change in the Office bearers and that the correspondence should be addressed to the petitioner Mr.M.Prasad Rao. However, the Association has not received any communication fixing the date of hearing.

At this stage, the District Collector, Kakinada filed O.P.No.56/86 in the Court of the Special Tribunal under the A.P.Land Grabbing (Prohibition) Act, 1982 against the former Secretary Rev.K.Danial Gandhi and others. By an order dated 3-3-1992 the Tribunal dismissed the petition and the Appeal L.G.A.No.7/92 before the Appellate authority was also dismissed on 22-4-1994. On 6-7-1995 the petitioner received a copy of the Caveat Petition from the Government Pleader for School Education wherein it is mentioned that the Government passed G.O.Ms.No.234 dated 24-6-1995 after giving personal hearing to the petitioner deciding to acquire the properties for public purposes connected with the education. After receiving the copy of the Caveat Petition, the petitioner approached the Advocate in Hyderabad and on his instructions the petitioner approached the Secretary complaining of no intimation about the date of hearing by the present Secretary, Education and also non-receipt of copy of the G.O. referred to in the Caveat Petition. But the Secretary expressed his inability to give a copy of the G.O. Hence the present writ petition is filed challenging the impugned G.O. on the ground that no opportunity of personal hearing was given to the petitioner.

The main argument of the learned Counsel for the petitioner is that Mclaurin High School was built in a portion of the property of the Canadian Baptist Mission and it has got more than 29 acres of land and the school is built only in an extent of 3 acres 75 cents and the Association is entitled to deal with the property in a manner which promotes the interest of the Association and the respondents cannot interfere with their right to manage the properties of the Association. They are agreeable to give Ac.3-75 cents to the Government for the public purpose, but they cannot be deprived of the right to manage the property as well as the School. the learned Counsel for the petitioner also submitted that the impugned G.O.Ms.No. 234 dated 24-6-1995 suffers from the following infirmities:

(1) that Section 60(1) of the Act has no application to a minority institution, and when once Section 60(1) has no application to the minority institution, the property belonging to the minority institution cannot be acquired.

(2) that the impugned G.O., is in violation of principles of natural justice. It is not a speaking order and no reasons are given in support of their decision to acquire the property u/s 67 of the Act;

(3) that the arguments were heard by the then Secretary of Education while the orders were passed by the Secretary who succeeded the earlier Secretary and, therefore, in violation of principles of natural justice, and

(4) that the Association is entitled to a fundamental right to manage an educational institution belonging to the minority institution under Article 30(1) of the Constitution of India and the impugned G.O., read with earlier G.Os. acquiring the management of Mclaurin High School is in violation of Article 30(1) of the Constitution of India.

While the Additional Advocate General contended that the petitioner cannot challenge the correctness of G.O.Ms.No.218 dated 8-5-1986 under which the Management of the Mclaurin High School was taken over as the earlier writ petition was dismissed on the ground that the petitioner had no right to challenge the correctness of the same as a Special Officer was appointed and the said Judgment operates as res judicata and debars the petitioner from challenging the correctness of the said G.O. When once the Management of the School was taken over, the properties vest in the Government for the purpose of managing the same and if the Government considers it necessary to acquire the property for any public purpose connected with the education, it can acquire the same by following the procedure contemplated u/s 67(1) of the Act. Accordingly a show cause notice was issued under G.O.Rt.No.262'' dated 3-3-1988 and thereafter G.O.Ms.No.523 dated 19-12-1988 was issued to acquire the property which was challenged by one Rev. KDaniel Gandhi in W.P.No.2815/89 before this High Court. The said writ petition was disposed of directing the respondents to given an opportunity of personal hearing to the said K.Daniel Gandhi representing the Association. Pursuant to the said direction the Education Secretary heard the matter and considered the report submitted by the Special Officer and passed the order on a note-file on 5-7-1992. However, the said order was not communicated to the petitioner before the transfer of the then Secretary, The present Secretary has issued Notification in G.O.Ms.No.234 dated 24-6-1995. Therefore, the allegation that one Secretary heard the matter and another Secretary passed the order is contrary to the facts on record. The Additional Advocate General also submitted that the petitioner has no locus standi to file the writ petition as he cannot represent the Association. There were five warring groups claiming to be representing the Trust. Therefore, the writ petition is liable to be dismissed on the ground that the petitioner has no locus standi

. 8. Before considering the rest of the arguments of the learned Counsel for the petitioner and the learned Additional Advocate General, it would be convenient if the contention of the petitioner that the petitioner was heard by one Secretary and the order was passed by another Secretary (sic is disposed of). In the counter affidavit filed it is stated that the Secretary who heard the matter passed the order but the same was not communicated to the petitioner. The communication was made by the present Secretary. There is no denial to the averments made in the counter affidavit by the respondents. Therefore, I proceed on the basis that the Secretary of the Education Department who heard the matter had passed the order and the successor Secretary only communicated the order in 1995. Therefore, the argument of the learned Counsel for the petitioner that one Secretary heard the matter and the another Secretary passed the order is rejected.

The next aspect to be considered is whether the judgment in W.P.No.6777/96 operates res judicata. The Counsel for the petitioner relying upon Ashok Kumar Srivastav Vs. National Insurance Company Limited and Others, , contended that the Rule of res judicata would not operate to the detriment or impairment of a fundamental right and the petitioner is entitled to manage the educational institution being a minority institution under Article 30(1) of the Constitution of India. Further, Section 60 of (lie Act itself excludes the applicability of the Act to the minority institutions. Therefore, the principle of res judicata is not applicable to the facts of the present case and it is open to the petitioner to contend that the respondents are not entitled to acquire the management of the Mclaurin High School u/s 60(1) of the Act.

The learned Counsel for the petitioner also relied on the following paragraph in Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, :

"..... But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Article 32 or Article 136 directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non-speaking one word order ''dismissed'', another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata.''"

Relying on the above paragraph, the learned Counsel for the petitioner contended that when a writ petition was dismissed by a non-speaking order on the ground of laches the principles of res judicata are not applicable on the facts of the present Case. W.P.No.6777/96 was dismissed on the ground that as the Special Officer was appointed and he has already assumed office for managing the affairs of the institution, the petitioner cannot agitate the same. Since there is no decision on merits, the principles of res judicata have no application and the said judgment is not a bar for raising the issue that the Management of the School cannot be taken over u/s 60(1) of the Act.

While the learned Additional Advocate General relying on the very same paragraph contended that when a writ petition was dismissed on the ground of laches then the 2nd writ petition on the same cause of action filed in the same High Court is not maintainable because the dismissal of the earlier writ petition operates as a bar in entertaining of another writ petition.

As pointed out in earlier paragraph, W.P.No.6777/96 challenging the G.O. taking over the management of the School was dismissed on the ground that the petitioner cannot agitate the same. In other words, it was decided that the petitioner has no right to challenge the G.O. The effect of the said decision is that the right of the petitioner to dispute the power of the Government to take over the management of the School was conclusively decided that he has no right to do so though on the ground that a Special Officer was appointed after the Management of the School was taken over by the Government. Therefore, in the normal circumstances, the said decision would operate as res judicata. However, the petitioner''s right to manage an educational institution is conferred under Article 30(1) of the Constitution of India, the petitioner being a minority institution. The said decision, therefore, does not operate as res judicata and it is open to the petitioner to challenge the correctness of G.O.Ms.No.218 of 1986, in view of the principle laid down in Ashok Kumar Shrivastav''s case (supra).

The next contention of the petitioner is that the G.O. impugned in this writ petition is not a speaking order and, therefore, it is liable to be struck down. I have perused the G.O., and it does not say a word about the reason why the properties are to be taken over. u/s 67 of the Act, power is conferred on the Government to acquire the property which is vested in it u/s 60(1) of the Act for public purpose connected with education. The G.O. does not say what is the purpose for which it is acquired and why the Government has considered it to acquire the property - whether the public purpose is connected with education apart from the ground on which the properties are sought to be acquired. Therefore, the impugned G.O. suffers from an infirmity and therefore it is liable to be struck down.

However, the petitioner has to cross the hurdle of locus standi as the main argument of the learned Additional Advocate-General is that the petitioner does not represent the Association and there are five warring groups which are claiming to be the representative of the Association and each group is interested only in selling away the properties of the Association and not at all interested in the management of the educational institution. Therefore, the question for consideration is whether the petitioner truly represent the Association. The petitioner claims that he is the representative of the Association while the respondents say that there arc five warring groups. However, none of the warring groups disputed the right of the petitioner to challenge the proceedings by getting themselves impleaded in the writ petition. No group is claiming to be the representative of the Association, In the absence of any warring group claiming to represent the Association, the petitioner who claims to be the elected representative is entitled to file the writ petition and he has a locus standi. There is no rival group before me claiming to be the representative of the Association, Therefore, I am of the view that the petitioner has locus standi to file the writ petition challenging the G.O.

It is true that in O.P.No.15/74 the 2nd petitioner viz., the Trust Association of Convention of Baptist Church of Northern Circars was appointed as a new trustee of the properties listed in the Schedule "A'' which includes the property of Mclaurin School. However, there is no evidence before me as to the procedure to be followed for the purpose of appointment of a Committee for the management of the Trust. However, in the absence of a rival group claim claiming the management of the Trust property, the petitioner is entitled to represent the Association and challenge the G.O.

In the above circumstances, the impugned G.O.No.234 Education (Ps.1) Department, dated 24-6-1995 issued by the 1st respondent is set aside and the matter is remanded to the 1st respondent for the purpose of reconsidering the whole matter afresh after giving an opportunity of personal hearing to the petitioner. The 1st respondent is directed to consider the matter afresh within 3 months from the date of receipt of a copy of this order. The writ petition is accordingly allowed with costs at Rs. 1,000/-.