{"id":167821,"date":"2011-09-02T00:00:00","date_gmt":"2011-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-unknown-on-2-september-2011"},"modified":"2018-05-15T04:25:18","modified_gmt":"2018-05-14T22:55:18","slug":"whether-reporters-of-local-papers-vs-unknown-on-2-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-unknown-on-2-september-2011","title":{"rendered":"Whether Reporters Of Local Papers … vs Unknown on 2 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether Reporters Of Local Papers … vs Unknown on 2 September, 2011<\/div>\n
Author: R.Balia,<\/div>\n
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n\n\n     SPECIAL CIVIL APPLICATION No 7907 of 1995\n\n\n           with\n\n\n     SPECIAL CIVIL APPLICATION No 7908 of 1995\n\n\n             with\n\n\n      SPECIAL CIVIL APPLICATION NO. 7909 of 1995\n\n\n\n     For Approval and Signature:\n\n\n     Hon'ble MR.JUSTICE R.BALIA.\n     ============================================================\n<\/pre>\n
     1.      Whether Reporters of Local Papers may be allowed
\n             to see the judgements?\n<\/p>\n
     2.      To be referred to the Reporter or not?\n<\/p>\n
     3.      Whether Their Lordships   wish to see the fair copy
\n             of the judgement?\n<\/p>\n
     4.      Whether this case involves a substantial question
\n             of law as to the interpretation of the Constitution
\n             of India, 1950 of any Order made thereunder?\n<\/p>\n
     5.      Whether it is to be circulated to the Civil Judge?
\n     1 and 2 – Yes   3 to 5   No\n<\/p>\n
     ————————————————————–
\n     H B KAPADIA EDUCATION TRTUST
\nVersus
\n     GUJARAT SECONDARY EDUCATION   BOARD\n<\/p>\n
     ————————————————————–
\n     Appearance:\n<\/p>\n
          MR BHARAT R PANDYA for Petitioners
\n          MR PREMAL JOSHI for Respondent No. 1<\/span>
\n          MR. MUKESH PATEL, A.G.P. for Respondent No. 2<\/span><\/p>\n
     ————————————————————–\n<\/p>\n
     CORAM : MR.JUSTICE R.BALIA.\n<\/p>\n
     Date of decision: 05\/05\/97<\/p>\n
ORAL JUDGEMENT
\n These three petitions raise an identical issue
\nand are hereby decided by this common order.          The
\npetitioner in Special Civil Application No. 7907 of 1997
\nis an H.B. Kapadia Education Trust established by H.B.
\nKapadia and R.H. Kapadia by Trust Deed dated 15.3.1956.
\nSpecial Civil Application No. 7908 of 1995 is by Preyas
\nEducation Trust settled by Arvindbhai Mohanlal Shah by
\nTrust Deed dated 8.2.1960 and Special Civil Application
\nNo.    7909    of 1995 is by Kapaida Education Trust
\nestablished by trust deed dated 5.3.1956        by   H.B.
\nKapadia.    All the three trusts applied to the State
\nGovernment claiming benefit of being exempt from the
\nprovisions of Section 17(21), Section 34, 35 and clause\n<\/p>\n
(b) of Sub-section (1) of Section 2,3,4 and 5 of Section
\n36 in terms of Section 40A stating that the trusts are
\nestablished and administered by the persons belonging to
\nminority community of Jains.\n<\/p>\n
2.In the first instance when the application dated
\n2.2.1994,12.2.1994 were not decided in respect of H.B.
\nKapadia as well as Preyas Education Trust the respective
\ntrusts filed Special Civil Application No. 2785 of 95
\nand 4471 of 1995 in which ultimately the court directed
\nthe competent officer to decide the applications within
\nthe time specified i.e.         31.5.1995  and    31.7.1995.
\nFinally   by     separate orders made on 17.8.1995 the
\nSecretary, Gujarat Secondary Education Board had rejected
\nall the three applications.       The reasons as per the
\ntranslated version of order submitted along with the
\npetition for refusal are firstly that there is no term in
\nthe constitution that the member except Jain cannot
\nremain in    the    trust.      It means at the time of
\nestablishment of the trust, there were the members except
\nthe Jain Community. Hence it proves that the institution
\nis not established by minority community.      Secondly, it
\nwas stated by the Secretary that there is also not a
\nprovision that only the person of Jain Minority Community
\ncan be appointed as the trustees and the method of
\nappointment of trustees has been so provided from which
\nit becomes clear that the trust is not established by
\nminority community.        Moreover, it is not that the
\nadministration of the trust will be made by only the
\npersons of minority community. However,it found that at
\npresent all the persons who are trustees belonged to Jain
\nreligion. With the aforesaid conclusion the Secretary
\nconcluded that it does not prove that as per the
\nprovisions of Article 29\/30 of the Constitution, the
\ninstitution is established by minority community and
\nadministration of it is made by minority.\n<\/p>\n
3.It will be apposite to refer to Articles 29 and
\n 30 of the Constitution of India and Section 40A of the
\nGujarat Secondary Education Act.\n<\/p>\n
\"Art.   29:       Protection   of   interests   of\n        minorities:\n<\/pre>\n
        (1) Any section of the citizens residing in the
\n        territory of India or any part thereof having
\n        distinct language, script or culture of its own
\n        shall have the right to conserve the same.\n<\/p>\n
(2) No citizen shall be denied admission into any
\n       educational institution maintained by the State
\n       or receiving aid out of State funds on grounds
\n       only of religion, race, caste, language or any of
\n       them.”\n<\/p>\n
“Art. 30: Rights of minorities to establish and
\n       administer   educational institutions :
\n(1) All minorities, whether based on religion or
\n       language, shall have the right to establish and
\n       administer educational institutions of       their
\n       choice.\n<\/p>\n
(1A)   In   making any law providing for the
\n       compulsory acquisition of any property of an
\n       educational     institution     established    and
\n       administered by a minority, referred to in clause
\n       (1), the State shall ensure that the amount fixed
\n       by or determined under such        law   for   the
\n       acquisition of such property is such as would not
\n       restrict or abrogate the right guaranteed under
\n       that clause.\n<\/p>\n
(2)The State shall not, in granting adi to
\n       educational institutions, discriminate against
\n       any educational institution on the ground that it
\n       is under the management of a minority, whether
\n       based on religion or language.”\n<\/p>\n
“Section 40A :\n<\/p>\n
Nothing contained in clause 23 of Section 17,
\n       Sections 34 and 35, and clause (b) of sub-Section
\n       (1) and sub-sections (2), (3), (4) and (5) of
\n       Section   36   shall apply to any educational
\n       institutions established and administered by a
\n       minority, whether based on religion or language.”\n<\/p>\n
4.Article 29 preserves the cultural rights of every
\nclass founded on distinct language, script or culture of
\nits own by providing that it shall have the right to
\nconserve the same.     Article 30 of the Constitution
\n specifically deals with rights of all minorities to
\nestablish and administer educational institutions whether
\nfounded on religion or language and provides that every
\nminority based on religion or language shall have right
\nto establish and administer educational institutions of
\ntheir choice. While clause (2) of Article 30 prohibits
\ndiscrimination by the State in the matter of granting aid
\nto educational institutions on the ground that it is
\nunder the management of minority whether based         on
\nreligion or language, Sub-clause (2) of Article 29
\ninhibits   the   rights   of   educational   institutions
\nmaintained by minority section to deny admission thereto
\non the ground only of religion, race, caste, language or
\nany    of them where such educational institution is
\nmaintained by the State or receiving aid out of State
\nfunds.\n<\/p>\n
5.The two provisions read together make out a
\ncomprehensive scheme of the rights of minorities in the
\nmatter of establishing and administering educational
\ninstitutions and inhibition against grant in aid on the
\nground of denial of admission on the basis of religion,
\nrace, caste, language or any of them.         It is the
\ndeclaration   already   made in favour of educational
\ninstitution which has been established by members of
\nminority community and is being administered by it. If
\nthe two factors are established, namely that it has been
\nestablished by member or members of minority community
\nwhether founded on language or religion and is being
\nadministered   by such minority the protection under
\nArticles 29\/30 follows.   It necessary implied that a
\nprotection which is available in presenti may be lost if
\nat any time either of the conditions ceases to exist. In
\nother words, the declaration and protection of rights
\nhave nexus and correlation to the point of time when such
\nright is sought to be enforced. If at that relevant time
\nit is established that the educational institution in
\nquestion has been established by member\/members        of
\nminority community and is being administered by such
\nminority the rights or benefits flowing from Article
\n29\/30 at that point of time secures the protection, and
\nthe same cannot be denied by imaginary projecting in
\nfuture that for want of certain conditions in the deed of
\nsettlement such protection may or may not exist in
\nfuture.   The provision under which benefit for the
\neducational institution is sought under Section 40A of
\nthe Gujarat Secondary Education Act was to operate in a
\nspecific field as noticed above. Educational institution
\nestablished or administered by a minority whether based
\non religion or language has been granted exemption from
\nthe operation of certain provisions of the Act leaving
\n room for freedom of operation for the management in that
\narea.   The provisions which are not made applicable to
\nthe institutions established and administered by minority
\nrelates to laying down qualifications and method of
\nselection and condition of appointment, promotion and
\ntermination of employees and rules of conduct           and
\ndiscipline    of   the   Headmaster    and   teaching   and
\nnon-teaching staff of registered        private   secondary
\nschool.    Provisions of Section 13 and the provisions
\nrelating to service in registered private secondary
\nschools delineated in Sections 34, 35 and section 36(1),
\n(2)(3)(4) and (5). Thus it is to be seen that in the
\nmatter of recruiting personnel to its institution which
\nis established and administered by minority has been left
\nfree from interference from outside and rigors of the
\nother provisions of the Act except to the extent it
\nprovides for providing a reasonable opportunity for
\nshowing cause against action proposes to be taken against
\nthe Headmaster and member or members of non-teaching
\nstaff, which is fundamental to all proceedings resulting
\nin civil consequences. The exemption flow automatically
\non fulfillment of two conditions namely the institution
\nhas been established by member or members of such
\nminority community that is based on religion or language
\nand   that    such   educational    institution   is being
\nadministered, as distinct from `shall continue to be
\nadministered’, by that community.\n<\/p>\n
6.In the aforesaid scheme of the constitutional
\nprovisions and the provisions of Gujarat        Secondary
\nEducation Act so far as the present administration of the
\ninstitution is concerned, it has been found by the
\ncompetent authority in its impugned order in unequivocal
\nterms that all persons who are trustees and managing
\naffairs of the institution in question belonged to Jain
\ncommunity.   It is not the case of the authority that
\nmembers belonging to Jain religion did not fulfill the
\ncriteria of a minority community for the purpose of Arts.
\n29, 30 of the Constitution or Section 40A of the Act.
\nRather he proceeded on the assumption that         person
\nfollowing   Jain   religion fulfills the criterion of
\nArticles 29 and 30 and Section 40A.   The criteria that
\nthe institution is being administered in presenti by
\nmembers of that community is the finding reached by the
\nofficer himself.    What shall be the future constitution
\nof the management cannot affect the rights which are
\nbeing claimed in presenti. If in future the institution
\nloses its character of its being administered by such
\nminority community, it may lose entitlement to continued
\nexemption flowing from Section 40A but that cannot be a
\nground for refusing the operation of exemption clause
\n when both the conditions can be shown to have fulfilled
\nat the given point of time when the question arises about
\noperation of such provision at that point of time.\n<\/p>\n
7.So far as the finding which has been reached by
\nthe Secretary that the institution is not established by
\nminority community, it is neither supported by any reason
\nwhich can lead to such conclusion at all on the reading
\nof the nor there is reference to any material to that
\neffect.   The sole ground for coming to the conclusion
\nthat institution is not established by minority community
\nemanates from the fact that the constitution of trust did
\nnot provide that no members except Jain community can
\nbecome the trustee to administer the said trust. So far
\nas the question of institution established by a minority
\ncommunity or members of minority community is concerned
\nis directly related to the question whether the settlor
\nof the trust or founder of the institution belonged to
\nany such class founded on       language   or   religion.
\nTherefore, the question directly asks for the religion to
\nwhich the settler of such trust or institution belong to
\nand not the religion of trustees who have been or may be
\nentrusted with the task of administering the trust. The
\nfact that the trustees belong to a minority community or
\nnot can have no relevant bearing whatsoever on the
\nquestion whether an institution has been established by
\nany member or members belonging to a particular community
\nfounded on language or religion which can be termed as
\nminority institution. No material other than the lack of
\nprohibition against appointment of any person other than
\nJain as trustees has been referred to or has been pointed
\nout by the learned counsel for the respondents to support
\nthis conclusion.    Obviously the conclusion is neither
\nsupported by any reason nor founded on any material.   An
\norder   founded on such findings suffers from error
\napparent from record. It appears that the Secretary has
\nnot drawn any distinction between the class to which
\nsettler belongs and the class to which the trustees may
\nbelong.   The order therefore cannot be supported on any
\nof the grounds disclosed in the order.\n<\/p>\n
8.Moreover, it would not be out of place to mention
\ndecision of this court in the case of F.A.H. S.     School
\nAhmedabad Vs.   M.M.    Dave (Guj) 1950-91(4) All India
\nEducation Cases 377. This clearly postulates that merely
\nbecause one or some of the members in the governing
\ncouncil are engaged for the better management of the
\ninstitution who may or may not belong to minority
\ncommunity   it does not cease to be an institution
\nadministered by minority community so far the majority of
\nthe   governing   body   are   belonging   to    minority
\n communication.   Induction of outsiders in the governing
\nbody may be necessitated for the reason of better
\nadministration required of educational institution or
\nsecuring better standards of education and ancillary
\nactivities so much so such right to establish educational
\ninstitution under the Constitution and exemption from
\noutside control in administration is envisaged in the
\ncontext of establishment of educational institution to
\nwhich the admissions to outsiders without distinction of
\nreligion, caste, race or language is the constitutional
\nrequirement. Right to administer such institution to the
\nmember or members of such religion        or   linguistic
\ncommunity exclusively is guaranteed to such member or
\nmembers but that does not inhibit member or members of
\nsuch   community   to   exercise their right with the
\nassistance of others.\n<\/p>\n
9.As a result of the aforesaid discussion these
\npetitions succeed.    The impugned orders in each case
\nrejecting the application of the petitioners claiming
\nbenefit of Section 40A of the Gujarat Secondary Education
\nAct is quashed and set aside and the competent officer is
\ndirected to decide the application afresh in accordance
\nwith law keeping in      view   the   observations   made
\nhereinabove and the principles laid down in the F.A.H.
\nS. School, Ahmedabad’s case referred to above.      These
\nrespective applications shall be decided within six weeks
\nfrom the date of service of the writ of this order. Rule
\nmade absolute accordingly in each case. No order as to
\ncosts. Direct service is permitted.\n<\/p>\n
 00000
\npkn\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether Reporters Of Local Papers … vs Unknown on 2 September, 2011 Author: R.Balia, IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7907 of 1995 with SPECIAL CIVIL APPLICATION No 7908 of 1995 with SPECIAL CIVIL APPLICATION NO. 7909 of 1995 For Approval and Signature: Hon’ble MR.JUSTICE R.BALIA. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-167821","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether Reporters Of Local Papers ... vs Unknown on 2 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-unknown-on-2-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether Reporters Of Local Papers ... vs Unknown on 2 September, 2011 - 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