TaxTMI 
TaxTMI 
1961 (10) TMI 96
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.... 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 sub....
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....1th 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....
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....minee 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 t....
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....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 totheManaging CommitteeofHigh Schools run by missionaries and other societies or trusts." The main question presented for determination in this case is wheth....
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....rocedure. 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 establ....
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....ually 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 Unive....
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....nd 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 ho....
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.... 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 ....
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....s. 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 ....
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....ondary 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 ca....
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....0, 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 ent....
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.... 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 libe....