WP/4614/2000 of TRUST ASSN. BAPTIST CHURCHES OF NORTHERN Vs SECRY SCHOOL EUDCATION DEPT HYDANDANR on 31 December 2008

COMMON ORDER:

In these two writ petitions, G.O.Ms.No.3, Education, dated 10.01.2000issued by the Government of Andhra Pradesh is challenged. The impugnedG.O. was issued proposing to acquire the property of McLaurin High School,Kakinada (for short ‘the school’) under Section 67(1) of the Andhra PradeshEducation Act,1982 (for short ‘the Act’).

When the country was under British Rule, an agency known asCanadian Baptist Foreign Mission Board, which was later renamed asCanadian Baptist Overseas Mission Board, was functioning with the object ofspreading Christianity. The school was established by the said organizationin the year 1911. After independence of India, the Board, while winding up itsactivity, transferred the management of the school to the Convention of theBaptist Churches of the Northern Circars (for short ‘CBCNC’). As regards theadministration of various properties, O.P. No.15 of 1974 was filed in theMadras High Court and in pursuance of the order passed therein, the schoolwas transferred to Trust Association of CBCNC.

The school was admitted to grant- in- aid. During 1960’s disputessurfaced as regards the administration of the institution and complaints werereceived to the effect that the management of the institution was not payingsalaries to the teachers. That has given rise to introduction of payment ofsalaries directly to the teachers. Thereafter steps under Section 24 of the Actread with orders in G.O.Ms.No. 894 dated 9.11.1984 for appointment ofSpecial Officer to the school and vesting the management of the school inhim were initiated. Accordingly, Government passed orders dated 5.8.1985appointing the District Educational Officer as the Special Officer. The DistrictEducational Officer was replaced by the Joint Collector vide proceedings dated 23.9.1985.

The Government of Andhra Pradesh initiated steps for taking over themanagement of the school under Section 60 of the Act. Initially a show causenotice was issued on 30.10.1985 and later a final order was passed in Memodated 8.5.1986. Writ Petition No.6776 of 1986 filed against the said memowas dismissed on 10.2.1989.

The Act provides for acquisition of the property of institution, themanagement of which was taken over under Section 60 of the Act. After theorder passed under Section 60(1) of the Act became final, the Governmentintended to acquire the property of the institution in exercise of the powerunder Section 67 of the Act. Accordingly, it issued G.O.Ms.No.523 dated19.12.1998 in exercise of the power under Section 67 of the Act. Writ PetitionNo. 2812 of 1989 filed against it was allowed by this court on 9.3.1990. TheSecretary to the Government was directed to hear the affected parties andpass fresh orders. Thereafter, the Government passed orders inG.O.Ms.No.234 dated 24.6.1995 acquiring the properties of the school. TheTrust, represented by its Secretary and Attorney holder Mr.Prasada Rao filedwrit petition No.16077 of 1995 challenging G.O.Ms.No.234 dated 24.6.1995.The writ petition was allowed on 1.7.1998 setting aside the orders of theGovernment and directing the Secretary to the Government to pass freshorders after giving opportunity of personal hearing to the petitioner therein. After remand for the second time, the Government passed the impugned G.O.

Writ petition No. 1933 of 2000 is filed by the Trust represented by itsAttorney holder Mr. K.Sukumar and Mr. C.J. R. Sunand, Secretary andConvener. Writ petition No.4614 of 2000 is filed by the same Trust butrepresented by its Secretary-cum-Treasurer and Attorney holderMr.M.Prasada Rao. The grounds urged in both the writ petitions are almostsame. It is pleaded that the school is a minority educational institution andChapter XI of the Act does not apply to minority educational institutions as isevident from proviso to sub-section (1) of Section 60 of the Act. It is stated thatthe reasons mentioned in the G.O. has justification for acquisition, areuntenable and the power under Section 67 of the Act was misused. The petitioners contend that the order passed by the Government under Section60 of the Act has emerged into the order passed under Section 67 of the Actand it cannot be said that the taking over of the management has becomefinal. It is also their case that even assuming that the order passed by thiscourt in writ petition No.6776 of 1986, dated 10.2.1989 has become final, itdoes not have the effect of taking away, the fundamental rights, guaranteedunder the Constitution of India.

On behalf of the respondents, a detailed counter affidavit is filed. It isstated that after noticing that there was gross mismanagement of the school,initially steps were taken under Section 24 of the Act and thereafter underChapter XI of the Act. It is contended that the petitioners do not have thelocus standi since they failed to establish their right to manage the institution.Reference is made to the various proceedings that are pending, making rivalclaims for administration of the institution. According to the respondents, oncethe order passed under Section 60 of the Act has become final, the power ofthe Government to take further action under Section 67 of the Act cannot beassailed.

Sri K. Pratap Reddy, learned senior counsel advanced arguments onbehalf of the petitioners. He contends that the school was established by theChristian Minority and as such no action can be taken against it underChapter IX of the Act, whether for taking over the management or foracquisition of the properties. He contends that though no appeal was filedagainst the order in writ petition No.6776 of 1986 filed against the orderpassed under Section 60 of the Act, its effect has been nullified by specificobservations made by this court in its order in writ petition No.16077 of 1995. Placing reliance upon precedents, the learned senior counsel submits thateven where there is no specific order conferring or recognizing the minoritystatus, the rights of institution guaranteed under Article 30 of the Constitutioncannot be infringed. He submits that the dispute as to management amongvarious groups cannot confer any right on the Government to pass orderscontrary to law.

Learned Government Pleader for School Education, on the other hand, submits that the very fact that two separate individuals have filed writ petitionson behalf of same Trust discloses that there are serious disputes amongthemselves and unless they independently prove their right, they cannotmaintain any writ petitions. He submits that it is not open to the petitioners toseek protection under Article 30 of the Constitution of India onceG.O.Ms.No.894 dated 9.11.1984 passed under Section 24 of the Act andthereafter orders in Memo dated 8.5.1986 issued under Section 60 of the Acthave been upheld and became final. He submits that Section 67 of the Act isalmost in the form of a consequential action or step incidental, to orderpassed under Section 60 of the Act.

Learned Government Pleader submits that at one stage themanagement itself requested the Government to take over the administration.He submits that a request was made to restrict the acquisition to Ac.3 -75cents leaving balance area for the Trust. He contends that the concern ofdifferent groups was only vis-à-vis the property, than the welfare of theinstitution.

There is no controversy as to the origin of the school. It wasestablished by Christian organization way back in the year 1911. It is notnecessary to refer to the various developments in detail as regards theagency that administered after independence. It was admitted to grant-in-aidand on noticing that there was gross mismanagement and rivalry amonglarge number of groups to manage, initially steps were taken to ensure thatthe teachers are paid salaries directly. This did not bring any substantialimprovement. Therefore, the Government contemplated action under Section24 of the Act. The provision empowers the concerned authority, not only todeclare the person in management of the institution as unfit to manage it, butalso appoint another in his place. This however is a temporary measure.Orders under this provision were issued by the Government vide proceedingsdated 5.8.1985. Ever since, an official of the Government is in managementof the institution. The record discloses that no effective challenge was madeto orders passed under Section 24 of the Act. Fairly large number of suits andwrit petitions were filed by various groups to gain control over the CBCNC

and its institutions. Some of them have agreed for the appointment of SpecialOfficer. The quarrel of concern was mostly about the property around theschool than the administration. Their effort was to restrict the areaappurtenant to the school to Ac.3-75 cents. At one stage, one of the groupsexpressed their willingness to part with the area covered by the schoolbuildings. This is evident from the following observation made by this court inits judgment in W.P.No.16077 of 1995.

“ The main argument of the learned counsel for the petitioner isthat Mclaurin High School was built in a portion of the property of theCanadian Baptist Mission and it has got more than 29 acres of land andthe school is built only in an extent of 3 acres 75 cents and theAssociation is entitled to deal with the property in a manner whichpromotes the interest of the association and the respondents cannotinterfere with their right to manage the properties of the association.They are agreeable to give Ac.3-75 cents to the Government for thepublic purpose, but they cannot be deprived of the right to manage theproperty as well as the School.”

Appointment of a Special Officer, to the school in exercise of powerunder Section 24 of the Act is only a temporary measure. With a view toassume the management on a permanent basis, the Government issued ashow cause notice dated 30.10.1985 to all the rival groups of themanagement directing them to explain as to why the management of theschool be not assumed to Government, under sub section (1) of Section 60of the Act. Thereafter, a final order was passed in Memo No.16503/Rules-2/85-12, Education, dated 8.5.1986. This was challenged by CBCNCrepresented by its President Mr. S.M.Kantha Raju by filing writ petitionNo.6776 of 1986. The writ petition was dismissed on 10-2-1989. The order passed by this court is brief and it reads as under:

“The special officer was appointed and he has already been assumedthe charge for managing the affairs of the institution. A gazettenotification to that effect was also published on 31.12.1988. As theinstitution was taken over and a special officer was appointed, thepetitioner cannot agitate the same. The writ petition is accordinglydismissed.”

This order became final and thereby the management of the institutionstood vested with the Government. It is no doubt true that the definition of “educational institution” under Section 59 of the Act exempts minorityeducational institutions from the purview of Chapter XI. It reads as under.

“educational institution” means any school, college or other institutionfor imparting education which is managed by an individual, body orlocal authority and is recognized by the Government, but does notinclude a minority educational institution”

Obviously, because the institution was under the management ofSpecial Officer appointed under Section 24 of the Act since 1984, thepetitioner in writ petition No.6776 of 1986 did not raise the plea in this regard.

Once the management of the institution is taken over under Section 60of the Act, it becomes competent by the Government to acquire the property of the institution under Section 67 of the Act. The provision reads as under:

“Acquisition of property:- (1) Where any property is vested under sub-section (1) of Section 60 in connection with the management of aneducational institution or is subject to requisition under sub-section (1)of Section 64, the Government may, if they consider it necessary toacquire the property for any public purpose connected with education,acquire at any time such property for the said public purpose bypublishing in the Andhra Pradesh Gazette a notice to the effect that theGovernment have decided to acquire the property in pursuance of thissection.”

The first step taken under Section 67 of the Act is the issuance of ashow cause notice. After issuing a show cause notice, the Governmentpassed final orders in G.O.Ms.No.523, Education, dated 19.12.1988. Thiswas challenged by filing writ petition No.2815 of 1989. The writ petition wasallowed on 9.3.1990. The G.O. was set-aside and it was directed that theaffected party must be given an opportunity of being heard. Thereafter, G. O.Ms. No.234, dated 24.6.1995 was issued in exercise of power under Section67 of the Act. The Trust, represented by Mr.Prasada Rao, in his capacity asSecretary and Attorney holder filed writ petition No.16077 of 1995 againstthe orders in G.O.Ms.No.234. It was strongly urged that Chapter IX of the Actdoes not apply to the institution. The Government, on the other hand, hadtaken the plea that once the order passed under Section 60 of the Actbecame final, the plea that the school is a minority institution cannot beraised. The Government has also objected as to the locus standi of thepetitioner therein.

In its judgment dated 1.7.1998 in writ petition No.16077 of 1995, thiscourt held that the order passed in writ petition No.6776 of 1986 does not operate as res judicata. It was observed that firstly the order did not result inany adjudication on merits and secondly, the principle of res judicata doesnot operate vis-à-vis the rights protected under Article 30 of the Constitutionof India. Reference was made to the judgment of the Hon’ble Supreme Court in Workmen of Cochin Port Trust vs. The Board of Trustees[[1]]. So far aslocus standi of the petitioner is concerned, it was observed that since therewere no rivals to him by that time, he is entitled to pursue the remedies.Ultimately, the order impugned therein was set-aside and the Governmentwas directed to pass fresh orders, after considering the explanation.

Learned senior counsel submits that in writ petition No.16077 of 1995,this court categorically held that the school is a minority educationalinstitution and the proceedings under Chapter IX of the Act against it areuntenable. It is difficult to treat the observations made by this court as finalpronouncement on such important aspects. In case the court was convincedthat the school is a minority institution and that it is exempted from Chapter IXof this Act, the question of remanding the matter would not have arisen. Thevery fact that G.O.Ms.No.234 dated 24.6.1995 was set-aside and the matterwas remanded to the Government for fresh consideration and disposalindicates that no final pronouncement as such was made as to the characterof the institution. Recognizing the status of the school as a minorityinstitution and requiring the Government to pass fresh orders in exercise ofpower under Section 67 of the Act, do not go together. Acknowledgement ofsuch a status would have drawn the curtain to all the proceedings vis-à-vis the school.

The Government has addressed vital issues in the impugned order.In its elaborate discussion on the various issues, it was observed that thoughinstitution was established about a century ago by a minority community, theadministration of the institution was with the Government for a very long timeand in that view of the matter, it cannot be treated as a minority institution. It isrelevant to note that the agency which established the school in 1911 did notpartake the character of minority, since it was not prevalent at that time. Therefore, the predominant factor would be management. Admittedly the school was under the management of Special Officers, by the time, theproceedings were initiated under Chapter IX. Earlier to that, there existedabout half a dozen groups in the Trust vying to take control of the properties.None of them cared for the school. Some of the groups have in fact requestedfor taking over. Even now, it is not pleaded that the institution is under themanagement of CBCNC. With the appointment of the Special Officer in theyear 1985, the effective management remained with one department or theother, of the Government. Once the order passed under Section 60(1) of theAct has been upheld by this court, the petitioners cannot raise that plea in theprovisions under Section 67 of the Act which are nothing but incidental orconsequential.

It is true that fundamental rights including those guaranteed under Article30 of the Constitution of India cannot be waived nor does the principle of resjudicata apply to them. However, from an overall consideration of the issue itemerges that the school is not under the management of religiousorganization or institution and the protection under Article 30 of theConstitution of India cannot be extended to it.

On account of the fact that there are several groups vying with each otherto control with the affairs of the petitioner trust, there is no consistency as totheir stand vis-à-vis the proceedings issued by the Government from time totime. It has already been pointed out that one group insisted that acquisitionbe confined to the area covered by the buildings. Another group headed byone Mr.Gandhi is said to have sold 24 plots out of the acquired property evenwhile proceedings are pending at various stages. The present writ petitionsthemselves demonstrate the lack of clarity as to the agency that is entitled toadminister the affairs of the Trust. Both the writ petitions were filed in the year2000, assailing the same G.O. Two different persons claim to be Attorneys ofthe Trust. In the first writ petition, K.Sukumar is mentioned as the Attorneyholder and in the second one Mr.Prasada Rao is shown, in the samecapacity. Another inconsistency is that Mr. C.J. R.Sunand is described asSecretary and Convener of the Trust in writ petition No.1933 of 2000 andMr.Prasad Rao is described as Secretary-cum-Treasurer in the other writ petition. Substantial number of proceedings are pending before variouscourts including this court, for adjudication of the rival claims by differentagencies. In this scenario, the plea as to the character of the institution cannotbe taken on its face value.

Further, it is not as if the Government is trying to appropriate the propertyfor itself. Its effort for the past two decades was only directed towardsensuring proper administration of an institution, established about a centuryago. To allay the fears of the petitioners, it can be clarified that the propertyshall be utilized only for educational institutions and not for any otherpurpose. This court does not find any legal or factual infirmity in the impugnedorder.

Hence, the writ petitions are dismissed upholding G.O.Ms.No.3,Education, dated 10.1.2000 but directing that the property acquired under theG.O. shall not be put to any use other than for running and establishment ofeducational institutions by the Government, and that the said property shallnot be transferred or made over to any other private or public agency, in anyform. There shall be no order as to costs.

____________________

Conclusion

L.NARASIMHA REDDY,J

Date: 31.12.2008

Note:L.R. copy to be marked.

B/o.Stp

THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY

W.P.Nos.1933 of 2000 & 4614 of 2000

(COMMON ORDER)

31-12-2008

THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY

P.D.JUDGMENT

W.P.Nos.1933 of 2000 & 4614 of 2000

[1]AIR 1978 SC 1283AIR 1978 SC 1283