Patna High Court
Dipendra Nath Sarkar vs State Of Bihar And Ors. on 24 October, 1961
Equivalent citations: AIR1962PAT101
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Ramaswami, C.J.
1. The petitioner Sri Dipendra Nath Sarkar is the Joint Secretary of the Bankipur Brahmo Samaj (hereinafter referred to as "the Samaj") and has been authorised by a resolution of the Samaj dated the "28th January. 1961, to make this application to the High Court under Article 226 of the Constitution. The case of the petitioner is that the Samaj is a minority community based on religion, and in the year 1930 the Samaj had established a school known as the Balika Vidyalaya. The Samaj has been administering the school from the date of its inception, and for the year 1960-61 the Samaj appointed a managing committee of the school with Sri J. Kundu, Advocate, as its Secretary. Respondent No. 4, Sri G. K. Kohli, was then acting as the Secretary of the Managing Committee in place of the Secretary appointed by the Samaj for the previous year 1959-60. He refused to make over charge of the school to the new Managing Committee appointed for the year 1960-61.
On the 8th April, 1960, respondent No. 4 wrote to Sri Kundu stating that he had been instructed by the Director of Public instruction to ask Sri Kundu not to interfere with the management of the School. On the 11th April, 1960, respondent No. 3. Secretary to the Board of Secondary Education, wrote to the District Inspectress of Schools that the Brahmo Samaj had no authority to constitute the Managing Committee "in view of the Government resolution laying down rules regarding management of High Schools" and that the existing Managing Committee With respondent No. 4, Mr. Kohli, as secretary will continue to function and remain in office.
The letter of the Board of Secondary Education is annexure C(1) to the application and reads as follows :
"No. 7863-64.
From The Secretary, Board of Secondary Education. Bihar, Patna.
To The District Inspectress of Schools, Dated Patna, the 11th April, 1960.
Subject: The Managing -Committee of the Balika Vidyalaya, Kadam Kuan, Patna.
Madam, It appears from the letter of the Acting Secretary of the aforesaid High School on the subject noted above that the Brahmo Samaj has formed a new Managing Committee for this year, but I am to inform you that the Bankipur Brahmo Samaj has no authority to constitute the Managing Committed in view of the Government Resolution laying down rules regarding management of High School.
Therefore, until the Managing Committee is reconstituted according to the rules contained in the Government Resolution till then the existing Managing Committee will continue to function and its President Mr. Justice Ujjal Narain Sinha and tile Acting Secretary Dr. Gopi Krishna Kohli will remain and continue in their Office.
Yours faithfully, Sd. J. Saran, Secretary Board of Secondary Education, Bihar, Patna."
On the 2nd May, 1960, the petitioner moved the High Court for grant of a writ under Article 226 of the Constitution to quash the order of the Board of Secondary Education dated the 11th April, 1960, on the ground that the order is ultra vires and unconstitutional. The application was numbered as Miscellaneous Judicial Case No. 358 of 1960. After hearing the parties the High Court granted a writ in the nature of mandamus commanding respondent No. 3 not to give effect to the said order of the Board of Secondary Education. The operative portion of the judgment of the High Court states as follows :
"For the reasons given above, it is manifest that the Vidyalaya was established and administered by the Samaj, which being a minority, based on religion, has a fundamental right to administer and manage the same as guaranteed to it under Article 30 of the Constitution, and that the resolutions of the State Government, dated the 28th September, 1954, and the 7th May, 1956, referred to above, so far as they infringe the right of the Samaj to administer the Vidyalaya, are unconstitutional, void and inoperative. Consequently, the order contained in letter No. 7863-84, dated the 11th April, 1960, of the Board of Secondary Education, which is Annexure L to the petition, is illegal and ultra vires, and thus not binding on the Vidyalaya. The petitioner is therefore, entitled to the grant of a writ in the nature of mandamus commanding the respondents not to give effect to the said order."
On the 17th November, 1960, respondent No. 3 wrote a letter to the Inspectress of Schools intimating that the letter of the Board dated the 11th April, 1960, should be considered as cancelled. The petitioner thereafter made several requests to respondent No. 4 to hand over charge of the school to the Brahmo Samaj, but respondent No. 4 flatly refused to hand over charge. On the 29th November, 1960, the petitioner wrote to respondent No. 4 that Sri Kundu and himself would go to the school on the 1st December, 1960, in order to take charge. On that date respondent No. 4 told the petitioner that he will not hand over charge of the school as he was not a party to the application.
2. The petitioner has now obtained a rule from the High Court calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued commanding them not to give effect to the order of the Board of. Secondary Education dated the 11th April, 1960, and further commanding respondents Nos. 4 to 13 to relinquish charge of the school and to make over charge to the Managing Committee appointed by the Samaj by the resolution dated the 27th March, 1960, and to desist from interfering with the management of the school by the Samaj.
3. Cause has been shown by the Government Advocate on behalf of respondents Nos. 1 to 3 and by Mr. Jaleshwar Prasad on behalf of the other respondents to whom notice of the rule was ordered to be given.
4. It is necessary at this stage to reproduce the resolutions of the State Government dated the 28th September, 1954, and the 7th May, 1956. The first resolution is to the following effect :-
"In paragraph 15 of Government Resolution No. 3268-E, dated the 5th December, 1923, it was decided that the managing committee of non-Government recognised high schools should consist of not more than 11 and not less than 7 members, inclusive of the president and the secretary.
In view of the large increase in the number of private high Schools and of the State funds being given to these institutions, Government had for some time, been considering the necessity of laying down, a more specific and clear-cut constitution for private high schools. They have been strengthened in this view by the emphasis laid by the Secondary Education Commission on the standard of managing committees of private schools. Accordingly the State Government have prescribed the constitution, term of office and the working of the managing committees of non-Government High Schools as in the rules below:-
1. That Managing Committee shall ordinarily consist of 11 members as follows:
(a) Not more than two donors, a donor being a person who might have donated to the school not less than Rs. 5,000 and not more than Rs. 1,0,000 in cash or kind. The donors shall be appointed by rotation in the manner determined by the Inspector of Schools. If only one donor is available, the vacant seat shall be filled by appointing an additional subscriber mentioned in Sub-rule (b).
If no donor is available, one seat will go to a subscriber as in Sub-rule (b) and the second to an additional representative of the guardians mentioned in Sub-rule (c).
(b) Subject to Sub-rule (a) above not more than two persons elected from among subscribers viz. persons who have for a period of three years continuously including the year of election paid not less than Rs. 12 per annum in cash towards the funds of the school.
x x x x x x x
(c) Not more than two guardians of the pupils of the school, whose names are borne on the school admission register, to be selected by the rest of the managing committee (the representative of donors and subscribers if any, the nominee of the department, the Headmaster and the Teachers' representative).
(d) Not more than three nominees of the Director of Public Instruction.
(e) Headmaster (Ex-Officio).
(f) Teachers' representative.
(2) All those who donate Rs. 10,000 or more to the school fund in cash or property shah be treated as life members of the committee and shall be ipso facto members of the committee, in addition to the 11 members enumerated in Rule 1 above.
(3) The President and the Secretary of the Committee shall be selected from amongst the members of the managing committee and the election shall be subject to the approval of the Director of Public Instruction. If the Headmaster is elected as the Secretary he shall not attend the meeting of the managing committee at the time that his personal case is under consideration.
(4) The Director of Public Instruction shall have the power to remove the Secretary or any member of the managing committee of the school after giving him a reasonable opportunity to explain his position. The Director will be the solo judge to decide if the opportunity given is reasonable. Any vacancy may he filled temporarily by nomination by the Director pending its being filled up in the prescribed manner.
(5) Any member failing to attend four consecutive meetings shall cease to be a member and the fact shall he reported by the Secretary to the Inspector of Schools together with the explanation of the member which should be asked for by the committee. The Inspector of Schools shall decide if the explanation offered by the member is to be accepted. If he accepts it he may Order the member's term to be continued.
(6) The term of a member of Managing Committee other than an ex-officio member shall be three years from the date of his appointment, election or selection.
X X X X (9) All High Schools to be newly recognised or of which the recognition is to be renewed, should have Managing Committee formed in accordance with these rules. Managing Committees of the existing recognised High School should also be re-organised on these lines within such time and in such stages as may be laid down by the Director. Even where the Managing Committees are not recognised immediately, the Director of Public Instruction shall be competent, with immediate effect, to exercise the powers mentioned under Rule 4.
(10) These orders shall apply also to all subsidised High Schools.
(11) The Director of Public Instruction may issue instructions from time to time in amplification of these rules or with a view to lacilitate the implementation and smooth working of the structure envisaged in these rules."
The second resolution states as follows :
1. Read Government resolution No. 17714, dated 28th September, 1954, on the constitution of Managing Committee of Non-Government High School.
2. The following order will govern the constitution of Managing Committee of High Schools, run by Missionaries and other Societies, or trusts :
The Managing Committee shall ordinarily consist of eleven members as follows:
(a) Not more than two seats will go to the missionary or any other society or trust, which is responsible for establishing the school and maintaining it,
(b) Not more than two seats will go to the subscribers, if subscription is raised from the public generally.
If no subscribers are forthcoming, the two seats, will be filled in the following manner.
In schools where no subscription is raised from the public generally, only one of the two seats meant for subscribers will go to the mission society or trust, and the other seat to an additional representative of guardians mentioned in Sub-rule (c) below:
x x x x x x x
(c) Subject to Sub-rule (b) above, not more than two seats will go to the guardians of the pupils reading in the school. The guardian members will be selected by the rest of the Managing Committee.
(d) Not more than three nominees of the Director of Public Instruction.
(e) The Headmaster (Ex-officio).
(f) A representative of the teachers.
3. Orders contained in paras 2-9 and 11 of the Government Resolution no cited above shall apply to the Managing Committee of High Schools run by missionaries and other societies or trusts."
The main question presented for determination in this case is whether the petitioner is entitled to invoke the protection guaranteed under Article 30 of the Constitution, which states 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.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language."
It is necessary also to refer in this connection to Article 29 of the Constitution which states:
"29.(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script Or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them." -
5. It is asserted on behalf of the petitioner that the Brahmo Samaj is a minority community based on religion and has a distinct culture of its own. The Brahmo religion is distinctly separate from Hindu religion and has a separate church with doctrines and tenets and rites of its own. The Samaj has a place of worship as "The Bankipur Brahmo Samaj Mandir" and the affairs of the Samaj have all along been managed by an Executive Committee elected from time to time by the General Committee which consists of the entire congregation of the Brahmos at Patna. There is no counter-affidavit on behalf of respondents Nos. 1 to 3 challenging the assertion of the petitioner that the Brahmo Samaj is a minority community based on religion. Respondents Nos. 4 to 13 have also not sworn an affidavit challenging the assertion of the petitioner on this point. There is an affidavit of Sri N. P. Sinha, a clerk of the school, but this affidavit cannot be taken into account be cause Sri N. P. Sinha has no locus standi to file an affidavit. The affidavit of Sri N. P. Sinha is also defective because it does not clearly express as to how much is a statement of the knowledge of the deponent and how much is a statement of his belief, and there is hence violation of Order 19, Rule 3, Code of Civil Procedure.
On behalf of the petitioner reference was made to the decision of the Calcutta High Court in Padmabati Dasi v. Rasik Lal Dhar, ILR 37 Cal 259, where Sir Lawrence Jcnkins. C. J. and Woodroffe, J. observed that the provision of Order 19, Rule 3 of the Code of Civil Procedure must be strictly observed, and where there is violation of that provision the affidavit must be ignored. I accept, the argument of the petitioner and hold that no value should be attached to the affidavit of Sri N. P. Sinha.
An affidavit was sworn by respondent No. 4 on the 21st September, 1961, on this point, but this affidavit must also be ignored as it was filed very late. It must, therefore, be taken that the Brahmo Samaj is religious miniority within the meaning of Art. 30 of the Constitution and entitled to protection under that Article. It is also the case of the petitioner that the Samaj has established the Batika Vidyalaya. This statement is also not denied by respondents Nos. 1 to 3. There is also no affidavit by respondents Nos. 4 to 13 on this point. There is also plenty of material on the record of the case to support the statement of the petitioner that the Banka Vidyalaya was established by the Samaj. In the year 1930 the Samaj conceived the idea of starting a Girls' School and formed a provisional committee for drawing up a scheme by resolution No. 2 of the Executive Committee of the Samaj, dated the 22nd October, 1930. A scheme was drawn up by the said provisional committee, and it was approved at a General Meeting of the Samaj held on the 30th November, 1930, and it was resolved that a girls' school should be established in the name of "Bankipur Baiika Vidyalaya" and a Managing Committee was appointed by the Samaj for the year 1931 with Sri Asutosh Mukherji as the Secretary of the school. Copies of the resolutions are annexures A and B to the application in Miscellaneous Judicial Case No. 358 of 1960. The school was established in a building situated at Khazanchi Road and belonging to Dr. Bidhan Chandra Roy, at present the Chief Minister of Bengal. The school was opened on the 7th December, 1930. on the anniversary day of the death of late Sri Prakash Chandra Roy, father of Dr. Bidhan Chandra Roy. On the 10th September, 1944, the constitution of the school was adopted by a resolution of the Samaj. A copy of the constitution of the school is annexure D to the application in the previous case and reads as follows :
"1. The Balika Vidyalaya at Bankipore was founded on the 7th December, 1930, by the Bankipore Brahmo Samaj.
2. The B. S. S. is a religious institution doing also education, social and philanthropic work. The Baiika Vidyalaya is an institution affiliated to the B. S. S. X X X XX X X
4. Subject to Clauses 5 to 14 below, the entire management of the Vidyalaya, including the appointment, dismissal and salaries of assistant teachers and other employees, full control over its income and expenditure, and the exercise of all such powers as are ordinarily required by Managing Committees of Schools, shall be in the hands of a Managing Committee consisting of not less than 7 and not more than 11 members to be appointed annually by the Executive Committee of the B. S. S.
5. The Managing Committee shall always include the Headmistress (ex-officio) and a representative of the staff (other than Headmistress) to be elected by the teachers.
6. The appointment of the Managing Committee of the Baiika Vidyalaya of its President, Secretary and if necessary of a Treasurer, shall be made annually by the Executive Committee of the B-S-S. The appointment of other office-bearers shall be made by Managing Committee, subject to the approval of the above Executive Committee:
7. The appointment of the Headmistress shall be in the hands of the Executive Committee of the B. S. S. subject to the approval of the Education Department of the Government.
8. The above Executive Committee shall stand in the position of Trustees to the Balika Vidyalaya. All properties received or acquired for and on behalf of the Vidyalaya shall be vested in the above Executive Committee.
9. The building and premises of the Vidyalaya may be utilised by the Managing Committee for other than educational purposes only with the sanction of the above Executive Committee. Worship of idols and images shall, however, in no circumstances be permitted in the buildings or premises of the Balika Vidyalaya.
X X X X X X X
11. Details relating to school discipline and teaching, such as arrangement of classes, preparing the time-table, selection of the candidates for the Matriculation Examination etc. shall be in charge Of the Headmistress; acting under the guidance of the University and the Education Department.
x x x x x x x
13. The Managing Committee shall be appointed for one year, viz. from the 1st April of one year to the 31st March of the next year. But it shall continue, in office until the next Managing Committee has actually taken over charge.
14. Vacancies occurring in Managing Committee during the year shall be filled up By the remaining members, subject to confirmation by the Executive Committee of the B. S. S. x x x x x x x x x x
18. In all other matters the rules framed by the Governor of Bihar for Managing Committee of aided school in respect of quorum notice, frequency of meetings and the general conduct of business shall be followed."
A copy of the constitution was submitted to the Director of Public Instruction, Bihar, through the Inspectress of Schools, Bihar, along with a letter dated the 21st March, 1945, which is annexure E to the previous application. In my opinion there is enough material on the record to support the contention put forward on behalf of the petitioner that the Balika Vidyalaya was founded and established by the Samaj and administered by it from the year 1944 right up to the year 1959 or thereabout.
6. The question now arises whether upon these facts the Balika Vidyalaya is entitled to the protection guaranteed under Article 30 of the Constitution. On behalf of the respondents it was contended by the Government Advocate that the petitioner is not entitled to the protection guaranteed under Article 30 of the Constitution, because the majority of the students studying in the school do not belong to the Brabmo Samaj and also because Brahmo religion is not taught in the school. It was submitted by the Government Advocate that for the application of Article 30 of the Constitution two preliminary conditions are necessary, namely, (1) the majority of the students enrolled In the school must belong to the religious minority, and (2) the subjects taught in the school must have some connection with the religion of the minority.
The opposite viewpoint was put forward on behalf of the petitioner and it was submitted that neither of these two conditions is necessary for invoking the protection of Article 30 of the Constitution. It was admitted on behalf of the petitioner that the majority of the students enrolled in the Balika Vidyalaya do not belong to the Brahmo religion. It was, however, asserted that the tenets of the Brahmo religion are observed in the school. It was said that the Head Mistress of the School has always been a Brahmo since its establishment in 1930, and there have been from time to time teachers who belonged to Brahmo Samaj. It was also said that the Sadharan Brahmo Samaj of Calcutta has published a book of hymns in Bengali known as "Brahma Sangeet". There is also a hymn book in Hindi known as "Brahma Sangeet'' published by the Samaj. Every day the work of the School begins with the singing of a selected hymn from the Brahma Sangeet, especially hymn No. 51 (Hindi) and hymns Nos. 1236 and 1562 (Bengali). The constitution of the school prohibits idolatry in any form, and there is an affidavit of Miss Sudhakana Bose, the Headmistress of the school and Secretary of the Samaj, to this effect. It is also stated in her affidavit that important Brahmo holidays, namely, 11th of Magh, the Foundation Day of Brahmo Samaj, the 19th of November, the birth anniversary of Keshav Chandra Sen, are observed in the school.
The argument put forward on behalf of the petitioner is that the Brahmo religion is observed in the teaching of the School. But the contention of Mr. P. R. Das on behalf of the petitioner is that even if Brahmo religion is not taught in the school and even if the majority of pupil are not Brahmo still the petitioner will be entitled to invoke the protection of Article 30 of the Constitution.
In my opinion the argument addressed by learned Counsel on behalf of the petitioner is well founded and must be accepted as correct. Under Article 30 of the Constitution the Samaj religious minority has two rights--(a) to establish a school of its choice, and (b) to administer it. The language of the Article does not require that the majority of the students in the school must belong to the religious faith of the minority. The Article does not also impose any limitation that the subjects taught in the school must be connected with the religion of the minority. On the contrary, the Article expressly states that the religious minority has a right to establish and administer educational institutions of its choice. The words "of its choice" arc crucial, and these words supply the key to the understanding of the true meaning and import of the Article. The crucial phrase in the Article is "of their choice" and the ambit of the freedom of choice conferred by the Article is therefore as wide as the choice of the particular community may make it. The right expressly conferred by the Article on the minorities is to establish educational institutions of their choice. It does not say that the minorities based on religion should establish educational institutions for teaching religion only. What the Article says is that religious minorities should have the right to establish educational institution of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. It is open to the religious minority to establish educational institutions for the purpose of conserving its religion, language or culture. It is also open to the religious minority to establish educational institutions purely for the purpose of giving a thorough good secular education to their children. In my opinion the Article applies to both these classes of institutions and I see no warrant either in the language or the context of Article 30 of the Constitution for cutting down the amplitude of the right or imposing any limitation on that right.
On behalf of the respondents the Government Advocate suggested that the language of Article 30(1) of the Constitution should be restricted by reference to Article 29 (1) of the Constitution. It was submitted that the protection conferred by Article 30 (1) of the Constitution only applies to such institutions as are established by the religious minority for conserving the language, script or culture of its own. But, as I have already said, the language of Article 30 (1) is different from that of Article 29 (1), and the crucial phrase in Article 30 (1) is "of their choice" which is the key note to the meaning of that Article.
It was also contended on behalf of the respondents that the protection conferred by Article 30 (1) only applies to such institutions which are established by the religious minority for the benefit of that minority. In other words, the argument was that the educational institution must have the majority of pupils belonging to the minority religion in order to qualify itself for the protection of Article 30 (1) of the Constitution.
I am unable to accept this argument as correct. There is no warrant for this argument in the language of the Article itself. There is no express limitation to that effect in Article 30 (1) of the Constitution, and to accept this limitation would necessarily involve reading of additional words such as "for their own benefit" in the Article which is ordinarily not permissible according to well established rules of construction. My concluded opinion, therefore, is that the Samaj is entitled to protection under Article 30 (1) of the Constitution, even though the school does not have the majority of students of the Brahmo Samaj on its roll and even though Brahmo religion is not taught as part of the School curriculum.
The view that I have expressed is borne out by the decision of the Supreme Court in In re, Kerala Education Bill, 1957 1959 SCR 995 : (AIR 1958 SC 956). It was argued by Mr. D. N. Pritt on behalf of the State of Kerala in that case that in order to attract the operation of Article 30 (1) of the Constitution it should be established that the educational institutions are run for the benefit of the minority community. It was pointed out by Mr. D. N. Pritt in that case that in most of the schools of Kerala at least 75 per cent of the students were from non-minorities, and Article 30 (1) of the Constitution has no application to such schools (see the argument of Mr. D. N, Pritt printed at page 1011 of the report). The argument was rejected by Das, C. J. at page 1052 (of SCR) : (at p. 978 of AIR), and it was pointed out by the learned Chief Justice that it is not necessary for the application of Article 30 (1) of the Constitution that the educational institutions should be established for the benefit of the members of the particular religious community. It was also held in that case that the right conferred oh the minorities under Article 30 (1) of the Constitution was to establish educational institutions not only for teaching religious subjects but also purely secular subjects, so that the children of the minority community should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as to make them fit for entering the public services.
At page 1052 (of SCR) : (at p. 978 of AIR), the learned Chief Justice states as follows :
"Having disposed of the minor point referred to above, we now take up the main argument advanced before us as to the content of Article 30 (1). The first point to note is that the Article gives certain rights not only to religious minorities but also to linguistic minorities. In the next place, the right conferred on such minorities is to establish educational institutions of their choice. It does not say that minorities based on religion should establish education institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and the eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. In other words, the Article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. The next thing to note is that the Article, in terms, gives all minorities, whether based on religion or language, two rights namely, the right to establish and tlie right to administer educational institutions of their choice. The key to the understanding of the true meaning and implication of the Article under consideration are the words 'of their own choice'. It is said that the dominant word is 'choice' and the content of that Article is as wide as the choice of the particular minority community may make it."
7. It was contended on behalf of the respondents that the constitutional right guaranteed in Article 30 is not absolute. It was submitted that the State Government can always withdraw recognition from schools which do not maintain a satisfactory standard of discipline Or where there is no proper administration of finances. That is no doubt a correct proposition to state. I think it is open to the State Government to impose regulations with regard to maintenance of discipline or standard of efficiency even as regards schools run by religious minorities. It is also open to the State Government to say that recognition would be withdrawn or the grant-in-aid would not be given if teachers take part in seditious agitation or if there is danger to public order or morality or health. The constitutional protection under Article 60 is, therefore, not absolute and it does not involve dispensation from obedience to general regulations made by the State for promoting the common good of the community.
But in the present case the orders of the State Government dated the 28th September, 1954, and the 7th May, 1950, intringe the constitutional protection guaranteed under Article 30 of the Constitution in so far as those orders of the State Government infringe the right of the Samaj to manage and administer the Vidyalaya. For the same reason the order of the Board of Secondary Education, dated the 11th April, 1960, infringe the constitutional protection guaranteed by Article 30 of the Constitution. In my opinion the resolutions of the State Government dated the 28th September, 1954, and the 7th May 1956, in so far as they affect the constitution of the Managing Committees of the High Schools run by religious minorities, infringe the constitutional freedom guaranteed under Article 30 of the Constitution and invade the sphere of intellect and spirit which it is the purpose of Articles 29 and 30 to preserve and to protect.
The matter is very clearly put by Mr. Justice Jackson of the American Supreme Court in a somewhat similar case in West Virginia State Board of Education v. W. Barnette, (1942) 319 U. S. 624 at p. 641), as follows :
"Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they arc so harmless to others or to the State as those we deal with here the price is not too great. But freedom to differ is not limited to things that do not master much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order:
If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
I am, therefore, of the opinion that the resolutions of the State Government, dated the 28th September, 1954, and the 7th May, 1956, already referred to in so far as they infringe the rights of the Samaj to manage and administer the Vidyalaya, are unconstitutional, ultra vires and void.
8. The petitioner is, therefore, entitled to grant of a writ in the nature of mandamus commanding the respondents Nos. 2 and 3 not to give effect to the order contained in letter No. 7863-64, dated the 11th April, 1960, and to withdraw their recognition of the existing Managing Committee constituted of respondents Nos. 4 to 13. I am also of the opinion that a direction should be given to respondents Nos. 4 to 13 to relinquish charge of the school and to make over charge of it to the Managing Committee appointed by the Samaj by its resolution dated the 27th March 1960, and to desist from interfering with the management of the school by the Samaj.
9. On behalf of the respondents it was submitted by the Government Advocate that a writ in the nature of mandamus is not normally issued as against private individuals, and reference was made in this connection to the decision of the Supreme Court in Sohan Lal V. Union of India, 1957 SCR 738 : ((S) AIR 1957 SC 529). I do not think that the decision of the Supreme Court has any application to the present case.
In the Supreme Court case, J a displaced person, was found prima facie entitled to allotment of a house and the Accommodation Officer moved his family into the house on May 10, 1952, but no letter of allotment was issued to him. Later, when certain facts became known which in the opinion of the Union of India disentitled J to the allotment, he was informed that the house could not be allotted to him. J was evicted from the house on September 27, 1952, without being given 15 days notice as required by Section 3 of the Public Premises Eviction Act (XXVII of 1950). The house was then allotted to S and he was given possession on October 3, 1952. J filed a petition under Article 226 of the Constitution in the High Court. The High Court ordered the Union of India and also S to restore possession of the house to J. It was held by the Supreme Court in these circumstances that no writ of mandamus should be issued either to the Union of India or to S for restoration of possession of the house because there was a serious dispute on questions of fact between the parties and the title of J was not clear, and a writ in the nature of mandamus could be issued only if the facts were not in dispute and the title to the property in dispute was clear. That is the gist of the principle laid down in that case.
It is manifest that in the present case the petitioner is entitled to grant of a writ on the basis of admitted facts and on the interpretation of the question of law with regard to Article 30 of the Constitution it is true that a writ of mandamus is a remedy of public law and will not be issued to a private individual in a matter of purely private right. In the present case the main question at issue, however, relates to the constitutional validity of the order of the Board of Secondary Education, which is a statutory body, and also to the constitutional validity of the resolutions of the State Government dated the 28th September, 1954, and the 7th May, 1956. It is true that the question of the right of respondents Nos. 4 to 13 to manage and administer the school is also involved in the present case. But that question is only incidental to the principal question of the constitutional validity of the order of the Board of Secondary Education which is impeached in the present case. I should refer in this connection to a passage from Ferrison Extra-ordinary Legal Remedies, page 329, dealing with a somewhat similar point dealing with the remedy of mandamus for compelling surrender of the properties of a private corporation by the incumbent officer to his successor in office.
"Mandamus is generally recognized as the only speedy and adequate remedy to compel surrender of the insignia, records funds and other property of a private corporation by the incumbent officer who refuses to deliver them to his successors in office, when it appears that he does not hold them under any color of right to the office. The right is incidental to the right to compel surrender of the corporate office to the lawful successor. The same principles that govern the right in the case of public officers are applicable to officers of private corporations. While mandamus is not the proper remedy to try title to office, an incumbent holding under no colour of right cannot defeat his successor's right to mandamus by raising the question, of the validity of the latter's title and thus deprive him of the right to possession of the corporate property belonging to the office, on the theory that mandamus is not the proper remedy to try title. As in the case of public officers, respondent, being without any colour of right, has no title to try. A prima facie right, a right de facto, and not de jure, is all that is necessary to such cases, or all that is involved. This a court may determine without deciding actual title. Actual title is only incidentally involved, if at all. The right to possession of the corporate property is incidental to the right to the office, not actual title, and when petitioner shows a prima facie right thereto, the court merely rests on such prima facie title for the time being, without adjudicating the actual title, which is left to a proceeding in quo warranto. Nor is it any defence to say that the property is not in the possession of the officer when it has been voluntarily turned over to some stranger, as it is the duty of the officer to have it in his custody, and if not, to regain it."
10. It is well established in the history of English law that a writ of mandamus is a most extensive remedy and it may be issued even in cases where the injured party has also another remedy open to it as in the case of admission or restitution in office. It was pointed out by Lord Mansfield in Rex v. Barker, (1762) 3. Burr 1264 at page 1267, that a writ of mandamus had been introduced "to prevent disorder from a failure of justice and defect of police" and that "within the last century it had been liberally interposed for the benefit of die subject and advancement of justice". It was also pointed Out by Sir W. Blackstone in his Commentaries on the Laws of England, Volume III, at page 264, that "the writ of mandamus is also made by the same statute 9 Ans. c. 20, a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal when a person is legally possessed. These are injuries, for which though redress for the party interested may be has by assize or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of King's bench; commanding, upon good cause shown to the Court, the party complaining to be admitted or restored to his office."
11. For these reasons, I consider that in the present case a writ of mandamus should go principally to respondents Nos. 2 and 3, commanding them not to give effect to the order, and to withdraw their recognition of the existing Managing Committee constituted of respondents Nos. 4 to 13. But in order to make that Writ effective and as consequential to that writ I would issue a direction under Article 226 of the Constitution to respondents Nos. 4 to 13 to make over charge of the school to the Managing Committee appointed by the Samaj, by its resolution dated the 27th March, I960, and to its Secretary, Sri J. Kundu, and to desist from interfering with the management of the school by the Samaj.
12. I would accordingly allow this application, but I propose to make no Order as to costs.
Choudhary, J.
13. I agree.
Sahai, J.
14. I agree.