Madras High Court
Madar Kalvi Christava Sangam By Its ... vs Government Of Tamil Nadu By Its ... on 1 July, 2005
Equivalent citations: AIR2005MAD395, 2005(4)CTC150, (2005)3MLJ582, AIR 2005 MADRAS 395, (2005) 3 MAD LJ 582, (2005) 4 CTC 150 (MAD), (2005) 34 ALLINDCAS 594 (MAD)
Author: T.V. Masilamani
Bench: T.V. Masilamani
JUDGMENT T.V. Masilamani, J.
1.The appellants are the plaintiffs in the suit before the trial court.
2. The appellants filed the suit for declaration that the first appellant/first plaintiff is a minority educational institution without being subjected to any outside interference and for costs. The defendants resisted the suit by filing separate written statements on various grounds and the trial court having analysed the evidence both oral and documentary and upon hearing both sides decreed the suit for declaration as prayed for, but declined to grant the relief that the first appellant institution shall not be subjected to any outside interference.
3. The appellants having aggrieved over the disallowed portion of the relief, preferred the appeal before the III Additional Subordinate Court, Coimbatore in A.S.No.264 of 1991. The learned Additional Subordinate Judge after perusing the recorded evidence in the light of the arguments advanced on either side, concurred with the judgment and decree passed by the trial court and dismissed the appeal with costs. Hence, the Second Appeal.
4. The averments in the plaint filed by the appellants/plaintiffs are briefly as follows:-
(a) The first plaintiff/Sangham was originally known as London Mission Compound Higher Elementary School for Girls and after independence, London Mission Society entered into an agreement with the first plaintiff at Coimbatore on 12.11.1951 entrusting the said school and its management to the first plaintiff for a period of 25 years. The first plaintiff-Sangham is governed by a constitution containing number of provisions regarding the members of the Management Committee, objects and reasons, etc. The first plaintiff manages the school as per the constitution framed by the institution.
(b) The London Mission Society was later on succeeded by the second plaintiff, namely, Church of South India, Coimbatore Diocese. The school is managed according to the Christian ideals, because it is run by a society belonging to a sect of minority Christian community. The institution is to be managed by the society or Sangam without any outside interference. The agreement between the first plaintiff and the London Mission Society are all produced for reference.
(c) While so, by a Memo No.101473/D1/f8 dated 31.12.1977, the first defendant informed that the first plaintiff-school is not recognised as a minority educational institution and thereupon the first plaintiff issued a notice under Section 80 of the Civil Procedure Code to the first defendant for withdrawing the said Memorandum. Consequently, the first defendant by its communication dated 5.6.1978 rejected the claim of the first plaintiff and also directed the first plaintiff to get a declaratory decree from the civil court that it is a minority institution.
(d) The plaintiffs are therefore constrained to institute the suit for declaration that the first plaintiff is a minority institution without its management being interfered with by any outside authority. After expiry of the agreement referred to above between the first plaintiff and London Mission Society, the second plaintiff has taken over the management of the school and is now running the institution. Though the second defendant is not affected by any relief to be granted in favour of the plaintiffs, she got herself impleaded as a party to the suit. The second defendant having no interest over the management of the school has no locus standi to resist the claim of the plaintiffs. Hence, the suit.
5. The contentions of the first respondent/first defendant in the written statement are briefly as follows:-
(a) This defendant, Secretary, Department of Education, Government of Tamil Nadu, is not aware of the contentions averred in paragraphs 3 to 5 of the plaint. It appears that the Higher Elementary School was upgraded into a Girls High School prior to independence. As such, the school comes under the purview of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 as and from December 1974. Since the management has fulfilled the various conditions prescribed under the Act, the Rules and Regulations intended for the management of the Sangham would not in any way affect the jurisdiction of this defendant to control the school, as all the aided schools come under the purview of the new Rules framed under the said Act from December 1974.
(b) As per Rule 9, admission must be open to children of all community, caste, and religion and that admission should not be made on communal ground. The reasons alleged in the plaint are not sufficient for the purpose of the recognision of the plaintiffs' institution as a minority educational institution.
(c) The plaintiffs without disclosing necessary facts has filed the suit with ulterior motive. The management of the school terminated the services of a Probationary Head Mistress, the second defendant herein on 4.3.1963 and therefore the High Court, Madras interfered with the said order and the Director of School Education has passed an order of reinstatement in 1970. The writ appeal was also disposed of against the plaintiffs. The matter was again referred to the Government who in turn directed the first plaintiff to seek relief under the Act that the first plaintiff's school is not a minority institution. It is only to circumvent these orders, the suit has been instituted and therefore the same is not maintainable.
6. The contentions of the second respondent/second defendant in the written statement are briefly as follows:-
(a) The plaintiffs filed the suit suppressing material facts only to defeat the rights of this defendant. This defendant was a Head Mistress of the first plaintiff's school. The then Correspondent, who did not belong to the minority community, passed an illegal order dismissing this defendant from service and therefore she was constrained to file the writ petition in W.P.No.4552 of 1968 for quashing the said order and the writ petition was ordered as prayed for. The appeal filed against the said order was also dismissed. Pursuant to the order passed in the writ petition, the Director of School Education directed the plaintiffs to reinstate this defendant in service.
(b) The plaintiffs have suppressed to mention the above facts in the plaint. The suit is also barred by the principle of res judicata and also under Order 2 Rule 2 of the Civil Procedure Code. This defendant is not aware of the agreement under which the second plaintiff was entrusted with the management of the school. There had been several complaints about the working and management of the school which is not functioning for the benefit of the minority community. The rights of this defendant as a staff of the institution had been confirmed by the High Court in the above writ petition. After prolonging the matter for several years, the the first plaintiff has now filed the suit vexatiously.
(c) Since this defendant had not been reinstated nor had been paid compensation for loss of employment and therefore the suit amounts to contempt of court as well as abuse of the process of law and courts. Therefore whatever declaration the plaintiffs may be granted, this defendant's right should not be prejudiced and hence the suit may be dismissed with costs.
7. On the above pleadings, the following issues were framed by the trial court for trial:-
(1) Whether the plaintiff is entitled for declaration that it is a minority institution?
(2) Whether the first defendant is entitled to interfere with the affairs of the plaintiffs' school?
(3) To what relief the plaintiffs are entitled to?
8. On the side of the plaintiffs two witnesses were examined as P.Ws.1 and 2 and documents marked as Exs.A-1 to A-8. On the side of the defendants no witness has been examined nor any document produced. The learned District Munsif having analysed the evidence on record and upon hearing both sides rendered a finding on the above issues that the plaintiffs are entitled to the declaration as prayed for and that the first defendant would have every right to interfere with the management of the institution in accordance with law. Hence the suit was decreed for the relief of declaration without costs.
9. In the appeal preferred by the plaintiffs, the learned Subordinate Judge framed the issue as to whether the appellants/plaintiffs are entitled to the relief of declaration that the plaintiffs' institution is a minority institution to be administered without being submitted to any outside interference as prayed for. On the basis of the recorded evidence and the arguments advanced on either side, the learned Subordinate Judge concurred with the finding rendered by the trial court and dismissed the appeal with costs. Hence the above Second Appeal.
10. Heard Mr.V.Mahohar, learned counsel for the appellants/plaintiffs, Mr. S. Senthilnathan, learned Additional Government Pleader for the first respondent/ Education Department and Mr. P. Valliappan, learned counsel for the second respondent.
11. Learned counsel for the appellants has submitted that the courts below erred in rejecting the consequential relief of injunction after having granted the relief of declaration as prayed for. Similarly, when the courts below granted declaration, the consequential relief for injunction restraining the first respondent from enforcing any statutory provision which would affect the plaintiffs' school character as a minority institution should necessarily follow. The courts below ought to have held that the first respondent should not insist upon to comply with the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act, which are not applicable to the minority institution.
12. In the above circumstances, the following substantial question of law was formulated on 27.1.1995 for consideration:-
Whether the plaintiffs/appellants are entitled to an injunction as prayed for in the suit once a declaration is granted that their institution is a minority institution?
13. Admittedly, the first appellant/first plaintiff is running the educational institution by name Madar Kalvi Nilayam Girls High School at Coimbatore. Similarly, it is not in controversy that the second appellant/second plaintiff, the Church of South India, Coimbatore Diocese superseded the erstwhile London Missionary Society which had managed and administered the London Mission Compound Higher Elementary School for Girls which in turn had been upgraded in 1947 as a high school. Similarly, the fact that the first plaintiff is running and managing the said school as an educational institution on behalf of the Christian community is not in controversy.
14. In this context, the first respondent (hereinafter referred to as the "Education Department") turned down the request made by the first plaintiff for recognision of the said school as a minority institution and the communication from the first defendant to the first plaintiff under Ex.A-3 to the effect that the Secretary of the first plaintiff/Sangham was requested to file a civil suit for declaration that the said school is a minority institution based on religion or language. Thus the plaintiffs issued the notice under Ex.A-4 (vide) Section 80 C.P.C. to the first respondent and filed the suit after receipt of the reply under Ex.A-5 rejecting the claim made under Ex.A-4.
15. In the above circumstances, it has become necessary to consider whether on the basis of the decree for declaration granted by the trial court, the plaintiffs are entitled to the consequential relief of injunction prayed for in the suit.
16. In this context, it is relevant to mention that since the defendants have not questioned the decree for declaration granted by the trial court and confirmed by the first appellate court, the same has become final. However, it is necessary to mention that under Article 30(1) of the Constitution of India, the minority communities have been conferred with right to establish and administer the educational institutions of their choice. The admitted fact is that the school run by the first plaintiff, namely, Madar Kalvi Nilayam Girls High School was originally known as London Mission Compound Higher Elementary School for Girls and was founded and established by London Missionary Society, a religious organisation consisting a sect of minority Christian community. Subsequently, the said school was upgraded into High School in 1947. Similarly, London Missionary Society was later on succeeded by the second plaintiff, namely, Church of South India, Coimbatore Diocese which is also a religious organisation formed by a section of the minority community and thus, the historical background of the said school as adumbrated in the plaint is not under dispute.
17. On the basis of the recorded evidence, both the courts below rendered the factual finding that the said school is a minority institution. Since it is seen from the communication from the first defendant to the first plaintiff under Ex.A-3 itself that the said school is an aided school receiving grants from the State funds, it squarely falls within the definition of the term "minority school" under Section 2(6) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. Similarly, it is not in controversy that the provisions under the said Act govern all the private schools inclusive of the minority schools as defined by the provisions referred supra. Thus, the said school under the management of the second plaintiff though a minority institution is governed by the regulative provisions under the said Act.
18. In this context, as has been rightly pointed out by the learned counsel for the respondents, as per the principle of law enunciated by the Supreme Court in the decision State of Tamil Nadu v. St. Joseph training institute (1991 (3) S.C.C. 87), the fundamental right of the minority community to establish educational institution of their choice is subject to the State's right to prescribe regulatory provisions. Similarly, the same view was reiterated in another decision of the Supreme Court in N. Ammad v. Emjay High School(1998 (6) S.C.C. 674) wherein the Hon'ble Supreme Court has laid down the law on the subject as follows:-
"A Constitution Bench of seven Judges of this Court in Kerala Educational Bill, 1957, Re has examined the constitutional validity of the Bill which was the precursor to the Act when the President of India had sought the advice of the Supreme Court under Article 143 of the Constitution. One of the propositions laid down by the said Constitution Bench in the said decision is this: the right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution."
19. On a careful consideration of the above circumstances in the light of the facts and evidence of the case, this Court is of the considered view that the first defendant being the Education Department having control and supervision over all aided schools including minority institutions, the school in question run by the plaintiffs cannot be prevented from exercising regulatory measures in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like, as prescribed by the Supreme Court in the decision cited supra. In view of such aspect of the matter, I am of the opinion that the findings rendered by the courts below to the effect that the plaintiffs are not entitled to the consequential relief of injunction against the first defendant from exercising the powers under law cannot be interfered with, either on the factual aspect of the matter or under any provision of law or precedent of authority laid down by the superior courts.
20. For the reasons stated above, the appeal fails and is accordingly dismissed. However, there shall be no order as to costs.