Dr. T. Varghese
George Vs. Kora K. George & Ors.
J U D G E M E N T
H.L. Gokhale J.
1.
Civil
Appeal No. 6786 of 2003 raises the question as to whether T. Thomas Educational
Trust, Perambur, Chennai, is in any way a Minority Educational Trust? And if
so, whether the Division Bench of the Madras High Court was justified in
framing a scheme for the administration of this trust under Section 92 of Code
of Civil Procedure, 1908 (`CPC' for short) by treating it as a Public
Charitable Trust? Facts leading to Civil Appeal No. 6786 of 2003 are this wise
2.
One
Shri T. Thomas son of Shri Thomas Pappy, of Perambur, Chennai, started a school
in Chennai by name `St. Mary's School' sometime in the year 1970. On 4.4.1975,
he executed a deed of declaration of a trust by name 'T. Thomas Educational Trust'
for the purpose of running of the school on the terms and conditions mentioned therein.
In para 2 of this deed he declared the objects of the trust as follows:-
a. "2. The said
Trust shall have the following objects namely -a. to run the said St. Mary's
School,
b. to run other
Educational Institutions and Institutions allied to Educational Institutions
like Research Institutions.
c. to accept donations
in any manner from any person or Institutions whether Governmental or quasi
Governmental or otherwise, for carrying out the purpose of the Trust.
d. to borrow moneys from
banks and/or other credit Institutions and/or individuals and/or public bodies
and/or other Governmental or quasi-Governmental bodies, on the security of its
properties or otherwise, for the purpose of the Trust.
e. to lease out or sell or
mortgage or otherwise deal with any of the properties of the Trust whether
moveable or immovable for the purpose of the Trust."
3.
In
para 3 he declared that the entire control and management of the Trust
including appointment of the Correspondent of the School shall rest in a `Board
of Trustee' who shall consist of the following persons namely:-
a. The Principal of the
School (ex-officio)
b. Headmaster or
Headmistress
c. Warden of the St.
Mary's School Hostel (ex-officio)
d. A member elected from
the Parents Association of the School.
e. A member elected from
the Staff Council of the School.
f. Three members
nominated by the above five members, having high standing in the Educational
field. He nominated the First Board of Trustees in para
4.
The
members thereof were as follows: -
a. Rev. Fr. G.M. Thomas,
B.Sc., L.T., acting Principal of the School.
b. Mr. Joseph Ebenezer,
B.Sc., L.T. Headmaster
c. Mrs. Elizabeth
Saraswathi, Warden of the St. Mary's English School Hostel(d) Mrs. Molly
Thayil, 37, Vyasa Nagar, Madras-39
d. Mr. J. Devaraj, B.A.
(Staff Member)
e. Mrs. Mary Joshna Thomas,
M.A.B.D., Prof. of History, St. Stephen's College, Pathanapuram, Kerela
f. Mr. D.V. DeMonte,
M.L.C., President, Anglo Indian Association, Madras
g. Pandit M.C. Chandy, Teaching
Assistant (Retd.) Madras Christian College School, Madras
4. What Shri T.
Thomas declared in para 10 with respect to the income of the School and
utilisation of its funds is very crucial for our purpose. This para reads as
follows:- "10. The income from the School or any income or funds pertaining
to the Trust shall be exclusively used for the purpose of the Trust including financial
assistance to poor and deserving pupils or students irrespective of case, creed
or religion." (emphasis supplied)
5.
Shri
Thomas died on 16.1.1984, and the trust and the school fell under the management
of his wife Smt. Elizabeth Thomas. There were allegations with respect to mis-management
of the funds of the institution by her. This led three persons taking interest
in the activities of the trust to institute a suit in the Madras High Court
under Section 92 of the CPC for framing of a scheme for this trust. They were:-
i.
Shri
D.V. DeMonte, a member of the First Board of Trustee,
ii.
Dr.
K.P. Natrajan, a parent of a student of the institution, and
iii.
Shri
Kora K. George, respondent No. 1 herein, who is husband of the sister of Late
T. Thomas.
6.
This
suit was numbered as Civil Suit No. 601/1987, wherein
(i) T. Thomas
Educational Trust,
(ii) Smt. Elizabeth
Thomas, (iii) Smt. Molly Thayil and (iv) Rev. Thomas Mar Osthatheos, were
joined as the defendants. The learned Single Judge framed the necessary issues
and then after recording evidence decided the suit. Issue Nos. 6 and 7 from
amongst them were as follows:- "6. Whether the suit falls outside the
purview of section 92 of the Code of Civil Procedure as contended by the second
defendant?
7.
Whether
this court has no jurisdiction to interfere with the management and with administration
of the first administration of the first defendant Trust under section 92
C.P.C."7. It was canvassed by Smt. Elizabeth Thomas before the learned single
Judge that the concerned trust was a private trust and a Minority Institution. She
pointed out that three schools of the institution had obtained declaration of being
minority educational institutions. Therefore, it was submitted that the single
Judge did not have jurisdiction to entertain the suit under Section 92 of CPC.
That submission was not
accepted by the learned single Judge. The learned Judge looked into the
original trust deed and noted that in para 3 of the founders declaration, one
of the objects was to accept donation in any manner from any person or
institutions whether governmental or otherwise for carrying out the purpose of
the Trust, which was the educational purpose. He also referred to the above
referred clause 10 which stated that the income and funds of the institution
were to be exclusively used for the purposes of the trust, including financial
assistance to the poor and deserving students irrespective of caste, creed or religion.
He referred to the prospectus
of St. Mary's group of schools. He also noted that no benefit whatsoever was to
be retained by any member of the family, and the beneficiaries were only public.
At the end of para 29 he held that the above factors would show that it is a
Public Charitable Trust. This para reads as follows:- "29. Issue 6 and 7:-
Ex. P-1 is the Trust deed. I shall refer to the clauses in it, which are
relevant for considering whether it is a public charitable trust.
In the first page he has
stated that this declaration of trust is made by T. Thomas, herein after called
the declarant which expression shall whenever it is not repugnant to the
context mean and include the heirs, successors, executors, administrators and legal
representatives of the Declarant. In para 3, it is stated that the said trust shall
have the following objects, viz.,
(a) to run the said
St. Mary's School; (b) to run other educational institutions, and institution like
research institution; (c) to accept donation in any manner from any person or institutions
whether governmental or otherwise for carrying out the purpose of the Trust
etc. In page 5, as per clause 8, a sum of Rs.2,000/- has been deposited with Indian
Overseas Bank, Perambur in the name of the trust, which sum along with further donation
etc., shall be utilized for the purposes for which the trust is created.
As per clause 10,
which is found at page 6, the income form the school or any income or funds
pertaining to the trust shall be exclusively used for the purpose of the trust,
including financial assistance to poor and deserving pupils or students irrespective
of caste, creed or religion. IN Ex. P-2, which is prospectus of St. Mary's
group of Schools under T. Thomas educational trust, in para 1, it is stated as
follows:-
"T. Thomas
educational trust was founded by chevalier t. Thomas M.A., Dip in Econ. (London),
to promote quality education in North Madras." The above would show that
the trust was created wholly for the purpose of imparting education. It is also
seen that there is provision for donations from the public. It is further seen that
no benefit whatsoever was retained by any member of the family and the beneficiaries
are only public. The above would show that it is a public Charitable
Trust."
8.
The
learned Judge however was of the view that the three conditions as laid down by
this Court in Bishwanath Vs. Shri Thakur Radha Ballabhji reported in [AIR 1967
SC 1044], had to be satisfied for invoking Section 92 of CPC viz. that (i) the
trust is created for public purpose of a charitable or religious nature. (ii)
there was breach of trust as directions of court is necessary in the
administration of such a trust; and (iii) the relief claimed is one of the
reliefs enumerated therein.
The single Judge took
the view that a case of breach of trust had not been made out, and the prayer
for direction was vague, and therefore although he found the trust to be a
charitable trust, he gave a finding in the affirmative on issue Nos. 6 and 7. Issue
No.8 was as to whether the plaintiffs could be considered as interested persons
to maintain the suit and ask for settlement of a scheme. The learned single
Judge held that they could not be said to be interested persons. He therefore,
dismissed the suit. At the end of para 30 he held as follows:-
"30........But,
if after evidence is taken, it is found breach of trust alleged has not been
made out and that the prayer for direction of the Court is vague and is not based
on any solid foundation in facts of reasons but is made only with a view to
brig the suit under section then a suit purporting to be brought under section 92
must be dismissed. In this case, after evidence is taken it is found that the breach
of trust alleged has not been made out and the allegations in the plaint and
the grievances made are not based on any fact or basis.
The ratio of this ruling
squarely applies to the facts of this case. Though I have found that this trust
is a Public Charitable Trust, in view of my findings under Issues 1 to 3, 5 and
8 it follows that Issues 6 and 7 are to be decided in the affirmative."
9.
The
respondent No. 1 herein carried the matter in appeal by filling O.S.A. No. 49
of 1995. Smt. Elizabeth did not file any cross appeal or objection on the
finding rendered by the single Judge that the institution was a public trust. The
Division Bench noted with approval that on Issues No.6 and 7, the single Judge
had held that the institution was a public trust. With respect to the finding
of the single Judge on above Issue No.8, the Division Bench noted that Shri
Kora K. George was instrumental in buying vast lands which are in possession
and ownership of T. Thomas Educational Trust.
He was also incharge of
constructing buildings for Marian School at and St. Mary's Girls School,
Sembium at Madras. The Division Bench held that he was a person who was very
much interested in the trust and the view taken by the learned single Judge to
the contrary was not correct. In the facts and circumstances of the case the Division
Bench formed the opinion that having held the institution to be a public trust,
it was necessary to frame an appropriate scheme. It noted that initially there
was only one school run by the trust, but now it was running a college also,
and a representation to the Principal of the college on the board of trustees
was necessary.
The Court was of the
view that it was absolutely necessary to fill up the lacunae in the deed of
trust which could be done only be framing a scheme therefor. The Court,
therefore, passed an order on 20.11.1995 calling upon both the parties to file draft
schemes for the consideration of the Court. Smt. Elizabeth Thomas did not file
any draft scheme in spite of this specific order. The Court, thereafter,
considered the draft scheme filed by Shri Kora K. George, and modified it
appropriately and accordingly allowed the appeal by its judgment and order
dated 4.12.1995.
10.
Smt.
Elizabeth Thomas and T. Thomas Educational Trust filed a Civil Appeal before
this Court against that judgment and order, which was numbered as Civil Appeal 16578
of 1996. A bench of three Judges of this Court disposed of the said appeal on
27.10.1999 by passing the following order:- "We are of the opinion that the
judgment of the High Court on the legal issues which were raised does not call
for any 8 interference but considering the fact that the appellants had been
the managing trustees ever since the inception, one further opportunity should be
granted to them to file a draft scheme which should be considered along with
the draft scheme which was filed by the respondent herein.
It will be more
appropriate, in our opinion, that the exercise of consideration the draft schemes
should be undertaken by the High Court rather than by this Court. We,
therefore, while affirming the judgment of the High Court in all other aspects
remand the case to the High Court for considering afresh the draft schemes. The
appellants herein will file the draft scheme within eight weeks from today.
The High Court will
decide the question thereafter after giving reasonable opportunity to both the
sides........." (emphasis added)As can be seen from this order, this Court
specifically affirmed the judgment of the High Court on all aspects. It remanded
the matter only with a view to give an opportunity to Smt. Elizabeth Thomas who
had filed the appeal. It is also material to note that pending the decision on
the scheme, this Court continued the status-quo with regard to the operation of
the approved scheme.
11.
After
the matter was remanded, a Division Bench of the Madras High Court went into
the issue of framing of the scheme. It looked into the history of the proceeding
as stated above. The High Court noted that although initially the trust was running
only one school, by the time the appeal was being decided in December 2002, it was
running eight schools and colleges. The Court noticed that there were
allegations of financial mis-management against Smt. Thomas, and therefore
appointed Mr. Justice Kanakaraj, a retired Judge of Madras High Court as an
interim Chairman of the trust. He gave two reports on 3.6.2002 and 7.10.2002,
wherein he reported that Smt. Elizabeth Thomas was trying to sell the land of the
institution situated at Madhavaram which was purchased for its engineering
college.
12.
The
Court examined the draft scheme presented by Smt. Elizabeth Thomas, Shri Kora
K. George and also by the interim Chairman. Smt. Thomas once again tried to
raise the issue that it was a minority institution, but the Division Bench
declined to accept that submission in view of the finding of the single Judge
on that issue being left undisturbed by this Court. Smt. Thomas wanted to be
appointed as a trustee for life. Division Bench noted that there were serious
allegations with respect to mis-appropriation of funds against her.
While looking into these
allegations, the High Court noted that she had created one trust of her own by
name Elizabeth Thomas Trust in October 1997. She had obtained a loan of Rs.2.50
crores on the security of T. Thomas Education Trust, and diverted that amount to
her own trust. The Division Bench had therefore, by an earlier order dated
27.3.2002 held that the assets of the Elizabeth Thomas Trust shall be treated
as belonging to the T. Thomas Trust. Smt. Thomas sought the appointment of a
religious leader of the Christian community as a trustee for life and as
Chairman of the trust.
The Division Bench
observed in para 16 of its judgment, that such a request cannot be acceded to,
and a public trust cannot be by a backdoor method converted into a religious
trust. It therefore framed the scheme in its judgment and order dated
5.12.2002. In paragraph 25 it appointed a Board of Trustees consisting of eight
persons. This para 25 reads as follows:- "25. The first Board of Trustees shall
comprise of Justice J. Kanakaraj, former Judge of the Madras High Court, as
Chairman, Shri S. Palamalai, I.A.S. (Retd.), as Executive Trustee and Mrs. Elizabeth
Thomas, as trustee,
Dr. V.A. Vasantha,
the Principal/Headmaster of St. Mary's Matriculation Boys High Secondary
School, Perambur, Chennai 11, the Principal/Headmistress of St. Mary's Matriculation
Girls Higher Secondary School, Sembium, Chennai-11, the Principal/Headmaster of
Chevalier T. Thomas Elizabeth Matriculation Higher Secondary School, Perambur, Chennai
11, the Principal of Chevalier T. Thomas Elizabeth College for Women, Perambur,
Chennai 11, as trustees. They shall within two months from the date of their
first meeting nominate a trustee to represent the non teaching staff employed
in the institution."
13.
Smt.
Elizabeth Thomas filed SLP No.24352 of 2002, to challenge the said judgment and
order, but later on she withdrew the same on 20.01.2003. (She has subsequently
passed away on 5.9.2006.) In the present Civil Appeal No. 6786/2003, this judgment
and order is challenged by the appellant herein who is a medical practitioner
from Chennai, and who admittedly was not a party before the High Court as
stated by himself in para 1.1 of the SLP. He claims to have arranged some good
funds for the trust. He has once again sought to raise the issue in this Court
that T. Thomas Educational Trust cannot be considered as a public trust. According
to him it is a minority institution and therefore, the High Court erred in
exercising the jurisdiction under Section 92 of CPC.
14.
The
appellant thereafter filed Civil Miscellaneous Petition (CMP) No. 20476 of 2003
to implead himself in disposed of O.S.A No. 49 of 1995. He filed another CMP No.
5673 of 2003 on 10.12.2003 for removal of the Chairman and the managing trustee
before the Madras High Court in O.S.A No. 49 of 1995. The appellant made a
grievance that the executive trustee and the Chairman were alienating the
properties and assets to the prejudice of the trust. He however, did not move
that CMP, and filed I.A. No.4 in Civil Appeal No. 6786 of 2003, to restrain the
trustees from alienating any of those estates or properties and sought appointment
of a receiver. This Court rejected the said I.A. by passing the following order
on 16.4.2004"- "We are not inclined to appoint a receiver as prayed for
in this application at this stage. However, we restrain the trustees from alieniating
any of the estates or the property without the permission of this Court. IA is
rejected."
15.
The
appellant thereafter moved a Contempt Petition bearing No. 435 of 2004 and
pointed out that in breach of this order dated 16.4.2004, the above executive trustee
and Chairman were disposing of few vehicles and furnitures of the institution. Thereupon,
this Court passed the following order on 6.9.2004:- "List the Contempt Petition
along with the main appeal. The application filed by the applicant for the
appointment of Receiver shall be moved before the High Court. We grant
permission to the applicant to make such application before the High
Court."
16.
(i)
CMP No. 20476/2003 was allowed by the High Court on 9.3.2005 and the appellant was
joined as a respondent in O.S.A No. 49 of 1995. Thereafter, the appellant moved
CMP No. 5660/2005 in O.S.A No. 49 of 1995 for appointment of a receiver. He also
filed CMP No. 9402 of 2006 seeking modification of the scheme decree passed in O.S.A
No. 49 of 1995.
The appellant made various
grievances including that some five acres of land of the trust at Madhavaram
had been sold at a much lesser price to the prejudice of the trust. The executive
trustee and the Chairman denied these allegations, and pointed out that all the
decisions were taken by the entire board of trustees and not only by these two
persons. On the other hand they alleged that the appellant was acting at the
instance of Smt. Elizabeth Thomas. The Division Bench of the High Court examined
all these issues, and accepted the submissions of the executive trustee and the
Chairman, and dismissed these three CMPs on merits by a detailed order dated
21.9.2007.
The Court held that
the appellant had not substantiated his allegations against the Chairman and
the Executive Trustee that they had acted against the interest of the trust or
has mis-managed its affairs. Therefore, there was no justification for
appointing a receiver for the trust. The High Court held that even assuming
that there was any irregularity in the sale of 5 acres of 12land and that the price
fetched was less, it was open to the appellant to seek appropriate remedy
before the appropriate forum. (ii) CMP No.10340 and 10341 of 2005 were filed by
one Shri V.G. Panneerselvam and Shri C.V.W Davidson to join in the proceeding
as additional applicants.
However, since CMP
Nos. 5673 of 2003, 5560 of 2005 and 9402 of 2006 were being dismissed on
merits, the Court did not entertain these two CMPs also. These two CMPs for
impleadment were therefore disposed of alongwith the said common order. This
common order dated 21.9.2007 has led to SLP Nos.22590 and 22591 of 2007. They are
being heard and decided along with Civil Appeal No. 6786 of 2003. Submissions
by the rival parties –
17.
Shri
K. Subramanian, Senior Advocate, appeared for the appellant. Respondent No. 9 and
10 i.e. T. Thomas Educational Trust as represented by its Executive Trustee,
Shri. S. Palamalai and its Chairman Justice J. Kanakaraj, have been joined in
this matter vide this Court's order dated 22.8.2003. Shri M.S. Ganesh, Senior Advocate
has represented them.
18.
The
principle submission on behalf of the appellant has been that the T. Thomas Educational
Trust is a minority institution and the High Court has erred in appointing Shri
S. Palamalai, a non-christian as the Executive Trustee and Correspondent of the
Trust. In support of his submission that it is a minority institution, Shri Subramanian,
learned senior counsel appearing for the appellant submitted that the trust was
found by Late Shri T. Thomas who was a Christian.
The school started by
him was named as St. Mary's School. Subsequently, three schools belonging to
this trust obtained a certificate of being minority schools under the Tamil 13Nadu
Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act) from a Civil
Court which had been left undisturbed in appeal also. All these factors were ignored
by the High Court in passing the impugned order. In his submission the High
Court should not have accepted the scheme proposed by Justice J. Kankaraj.
19.
Shri
Subramanian submitted that Article 30 (1) of the Constitution of India gives a fundamental
right to the minorities to establish and administer educational institutions of
their choice, and this right should not be allowed to be diluted. He relied
upon a judgment of a Constitution Bench of this Court in State of Kerala Vs. Very
Rev. Mother Provincial reported in [1970 (2) SCC 417], and particularly
paragraph 8 thereof.
This paragraph reads
as follows:- "8. Article 30(1) has been construed before by this Court.
Without referring to those cases it is sufficient to say that the clause
contemplates two rights which are separated in point of time. The first right
is the initial right to establish institutions of the minority's choice.
Establishment here means the bringing into being of an institution and it must be
by a minority community. It matters not if a single philanthropic individual with
his own means, founds the institution or the community at large contributes the
funds.
The position in law
is the same and the intention in either case must be to found an institution
for the benefit of a minority community by a member of that community. It is
equally irrelevant that in addition to the minority community others from other
minority communities or even from the majority community can take advantage of these
institutions. Such other communities bring in income and they do not have to be
turned away to enjoy the protection."
20.
Thereafter,
he referred to the judgment in the case of Secretary, Malankara Syrian Catholic
College Vs. T. Jose and others reported in [2007 (1) SCC 386], wherein one of
us (R.V. Raveendran, J.) was a member of the Bench. The Counsel submitted that in
paragraph 19, this Court had summarised the general 14principles relating to establishment
and administration of educational institutions by minorities. The principle (i)
(a) laid down therein reads as follows:- "(i) The right of minorities to establish
and administer educational institutions of their choice comprises the following
rights: (a) to choose its governing body in whom the founders of the institution
have faith and confidence to conduct and manage the affairs of the institution;
"He submitted
that the correspondent appointed under the impugned order could not be said to
be person in whom the founders would have had confidence. In any case, Smt.
Elizabeth wife of the founder did not have confidence in him. He drew our
attention to the observations of this Court in paragraph 63 (6) of the judgment
in All Saints' High School, Hyderabad and others Vs. Government of Andhra
Pradesh reported in [1980 (2) SCC 478] to submit that introduction of an
outside authority however high in the governing body would be destructive of the
fundamental right guaranteed by Article 30 (1) of the Constitution.
In his submission, the
proper course must be to consider the past history of the institution and the
way in which the management has been carried out herein before as was laid down
by the Privy Council in MD. Ismail Ariff and others Vs. Ahmed Moolla Dawood and
another reported in [AIR 1916 P.C. 132]. This being the position, in his
submission the order of appointment of the Executive Trustee was vitiated.
The High Court had
not discharged its function under Section 92 of CPC correctly, and therefore,
this Court ought to interfere and set-aside the impugned judgment and order,
and if necessary, remand the matter to the High Court for re-consideration. He
also drew our attention to some of the allegations of mis-management against
the Chairman and correspondent.
21.
Shri
M.S. Ganesh, learned senior counsel appearing for the Chairman and the correspondent
of the trust on the other hand submitted that the appellant was working at
cross purposes with the trust, and this fact should not be lost sight of. The
appellant claims to have arranged contributions of lakhs of rupees to the trust
when Smt. Elizabeth Thomas was in the management, and has subsequently started
claiming those amounts from the present management. On 24.2.2003, he sent a fax
message demanding lakhs of rupees from the trust, and when Shri S. Palamalai visited
Kottayam, the appellant threatened him to return the amounts which led the
correspondent to lodge a complaint with the police on 26.2.2003.
Smt. Elizabeth Thomas
and the appellant were hand in gloves, and, therefore although she withdrew her
appeal to this Court, she recommended the appellant for being taken in the
formal meetings of the board by her letter dated 22.1.2003, and in spite of the
above referred incident on 26.2.2003 she once again wrote to the Chairman of
trust that his moneys be returned.
22.
Apart
from this aspect, Shri Ganesh pointed out the fact that this trust is a secular
public trust for the purposes of education, is writ large in the document of
the trust as well as its activities. He pointed out that the trust deed permits
receiving of funds from anybody, it does not anywhere state that it is set up
in the interest of any minority community having a separate culture of its own.
On the other hand para
10 of the trust document specifically states that its funds will be utilized
for encouraging the deserving and poor students, irrespective of caste, creed
or religion. All throughout the findings on this aspect have been very clear. The
single Judge has held that it was a public charitable trust and not a minority
institution. That view was accepted by a 16Division Bench, and reaffirmed by a
bench of three judges of this Court. That being so there was no occasion to
reopen the issue any more.
23.
With
respect to the orders of being minority institutions obtained by three schools of
the trust under the Tamil Nadu Act, Shri Ganesh submitted that at the highest
those orders will have to be read as obtained for the purposes of that statute,
though in his submission the orders were obtained from an authority viz. the
Civil Court which did not have the jurisdiction to issue such orders. In any
case, the orders could not be used for the purposes of restricting the
objective of the trust, and for making a submission that the trust is a
minority institution.
The intention of the
founder of the trust must be correctly understood and given utmost importance, which
is what the Court had done in this matter all throughout. He relied upon the judgment
of a Constitution Bench in S. Azeez Basha Vs. Union of India reported in [AIR
1968 SC 662] where in the context of Article 30(1) this Court observed in paragraph
19 as follows:- "19. ...... The Article in our opinion clearly shows that
the minority will have the right to administer educational institutions of
their choice provided they have established them, but not otherwise.
The article cannot be
read, to mean that even if the educational institution has been established by
somebody else, any religious minority would have the right to administer it
because, for some reason or other, it might have been administering it before
the Constitution came into force. The words "establish and
administer" in the article must be read conjunctively and so read it gives
the right to the minority to administer an educational institution provided it has
been established by it. ......
We are of opinion that
nothing in that case justifies the contention raised of behalf of the petitioners
that the minorities would have the right to administer an educational
institution even though the institution may not have been established by them.
The two words in Article 30(1) must be read together and so read the Article gives
this right to the minority to administer institutions established by it. If the
educational institution has not been established by a minority it cannot claim
the right to administer it under Article 30(1). ...." (emphasis supplied)
Shri Ganesh submitted
that as the proposition states, if an educational institution is established by
somebody else, a religious minority does not acquire the right to administer it
only on the ground that for some reason or the other, it might be administering
it. In the instant case, though the trust is constituted by person belonging to
a religious minority, he created a secular trust. He has specifically stated that
its income is not to be utilized for the benefit of students belonging to any particular
community. The objects of the trust in no way state that the trust is set up in
the interest of any minority having a distinct culture within the meaning of
Article 29(1) of the Constitution.
He referred to a recent
judgment of this Court in T.M.A. Pai Foundation and others Vs. State of
Karnataka and others reported in [2002 (8) SCC 481], and particularly paragraph
117 thereof where this Court referred to the judgment in Ahmedabad St. Xavier's
College Society Vs. State of Gujarat reported in [1974 (1) SCC 717] which
reiterated the observations of Das, CJ in Kerala Education Bill [AIR 1958 SC 956]
to the effect that right to administer is to be tempered with regulatory measures
to facilitate smooth administration.
The right to manage a
minority institution does not mean a right to mismanage the same. He also made
a wider submission based on the observations of a Constitution Bench of this
Court in Commissioner Hindu Religious Endowments, Madras Vs. Shri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt reported in [1954 (5) SCR 1005], where in
the context of Article 26 (b) of the Constitution, it is observed at page 1023
that "it is clear therefore that questions merely relating to
administration of properties belonging to a religious group or institutions are
not matter of religion to which clause (b) of the Article applies." In his
submission administration of an educational trust is a secular activity and the
appointment of a person belonging to another religion cannot amount to any
infringement of the right of a minority under Article 30 (1) of the
Constitution. Consideration of the rival submissions
24.
We
have noted the submissions of both the counsel. To begin with, we would like to
refer to the provision of Section 92 of CPC whereunder the proceedings leading
to these appeals were initiated. This Section reads as follows:- "92. Public
charities - (1) In the case of any alleged breach of any express or
constructive trust created for public purposes of a charitable or religious
nature, or where the direction of the Court is deemed necessary for the
administration of any such trust, the Advocate-General, or two or more persons
having an interest in the trust and having obtained the [leave of the Court] may
institute a suit, whether contentious or not, in the principal Civil Court of
original jurisdiction or in any other Court empowered in that behalf by the State
Government within the local limits of whose jurisdiction the whole or any part of
the subject-matter of the trust is situate to obtain a decree-(a) removing any
trustee;
(b) appointing a new
trustee;(c) vesting any property in a trustee; [(cc) directing a trustee who
has been removed or a person who has ceased to be a trustee, to deliver
possession of any trust property in his possession to the person entitled to the
possession of such property;](d) directing accounts and inquiries;(e) declaring
what proportion of the trust property or of the interest therein shall be
allocated to any particular object of the trust;(f) authorizing the whole or
any part of the trust property to be let, sold, mortgaged or exchanged;(g) settling
a scheme; or(h) granting such further or other relief as the nature of the case
may require.
(2) Save as provided by
the Religious Endowments Act, 1863 (20 of 1863), [or by any corresponding law in
force in [the territories which, immediately before the 1st specified in sub-section
(1) shall be instituted in respect of any such trust as is therein referred to
except in conformity with the provisions of that sub-section. 19 (3) The Court
may alter the original purposes of an express or constructive trust created for
public purposes of a charitable or religious nature and allow the property or income
of such trust or any portion thereof to be applied cypres in one or more of the
following, circumstances, namely:- (a) where the original purposes of the trust,
in whole or in part,-
(i) have been, as far
as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be
carried out according to the directions given in the instrument creating the trust
or, where there is no such instrument, according to the spirit of the trust; or
(b) where the original purposes of the trust provide a use for a part only of
the property available by virtue of the trust; or (c) where the property
available by virtue of the trust and other property applicable for similar purposes
can be more effectively used in conjunction with, an to that end can suitably be
made applicable to any other purpose, regard being had to the spirit of the trust
and its applicability to common purposes; or
(d) where the
original purposes, in whole or in part, were laid down by reference to an area
which then was, but has since ceased to be, a unit for such purposes; or (e) where
the original purposes, in whole or in part, have, since they were laid down,- (i)
been adequately provided for by other means, or (ii) ceased, as being useless or
harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased
in any other way to provide a suitable and effective method of using the property
available by virtue of the trust, regard being had to the spirit of the
trust]."
25.
As
can be seen from this Section two or more persons having interest in the trust
may institute a suit in the principle civil court of original jurisdiction to
obtain a decree concerning a public charity for various purposes mentioned
therein. Such suit will lie where these persons make out a case of alleged
breach of any trust created for public purposes or for directions of the Court
for administration of the trust. One of the purposes set out in sub-section (1)
(g) is settling a scheme, sub-section (b) speaks 20about a new trustee being appointed,
and sub-section (a) speaks about removing a trustee.
Out of the three
persons who filed the Civil Suit No.601 of 1987, Shri D.V.D. Monte was a member
of the Board of Trustees nominated by the founder Shri T. Thomas himself. Shri
Kora K. George is a brother-in-law of Shri T. Thomas. He has raised funds for
buying lands for the institution, and for constructing the buildings of the
school. Therefore, although the single Judge held that he could not be said to
be a person having interest in the trust, that finding was reversed by the
Division Bench in OSA No.49 of 1995. Dr. Natrajan is a parent of a student of
the institution. None of these persons can be criticized as persons lacking
good intention for the trust.
26.
Sub-section
(2) of Section 92 lays down that a suit claiming any of the reliefs specified in
sub-section (1) has to be instituted in conformity with that sub-section. Such
suit having been filed, the Trial Court gave a finding that it was a public trust
and not a minority institution. That finding has been left undisturbed by the
High Court, and confirmed by a bench of three judges of this Court. Although, the
Trial Court declined to accept the principle prayer of Shri Kora K. George and
others, the Division Bench in appeal realised that an appropriate scheme for
the administration of the trust was necessary. The Court, therefore, framed the
scheme considering the objects of the trust by its order dated 4.12.1995.
27.
It
is material to note that the Division Bench had framed the scheme by its order dated
4.12.1995, after calling upon Smt. Elizabeth Thomas to give her proposals which
she had declined to do so. Still, with a view only to give one more opportunity
to her, this Court remanded the matter once again to the High Court.
The Division Bench of
the High Court which heard the matter after remand appointed Justice J.
Kankaraj, a retired Judge of Madras High Court as the interim Chairman, and a
retired IAS Office Shri Palamalai as the Executive Trustee and Correspondent in
April 2002. Hon'ble Justice J. Kankaraj made the necessary reports to the
Division Bench and pointed out that Smt. Elizabeth was mis-managing the trust.
The Division Bench considered
all the aspects and proposals including that of Smt. Elizabeth Thomas for
framing the scheme and framed an appropriate scheme by its order dated
5.12.2002. Apart from the appellant, and Smt. Elizabeth hardly anybody has
raised any grievance with respect to the functioning of the Chairman or the
Correspondent. The appellant did not choose to initiate any proceedings with
respect to the functioning of the trust as required under Section 92.
After the scheme was
finalized, although Smt. Elizabeth filed an appeal, she withdrew the same. It
was at this stage that the appellant filed the present appeal raising the
issues that he has raised. The correct course of action for him ought to have
been to file his suit under Section 92, if he deemed it fit.
28.
As
can be seen from the narration above, as far as the character of the trust as a
secular public trust is concerned, that view was taken initially by a learned Single
Judge. Subsequently, it was confirmed by a Division Bench as well as by a bench
of three judges of this Court. The fact that the trust was set up by Late Shri
T. Thomas who belongs to a religious minority was very much there before the
Courts all throughout.
The fact that three schools
of this trust had obtained a certificate of minority character was canvassed before
the single Judge, and in spite of that submission the single judge gave a
finding that the trust was not a minority trust. He recognised the secular
character of the institution, particularly by referring to Clause 10 of the
declaration made by the founder. The specific finding on concerned issues No. 6
and 7 was left undisturbed by a Division Bench of the High Court in appeal and reaffirmed
by a bench of three judges of this Court. Smt. Elizabeth did not file any appeal
on this finding of the single Judge to the Division Bench of the High Court.
This Court has
already confirmed that finding. Explanation IV to Section 11 of Code of CPC
clearly lays down that any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been a
matter directly and substantially in issue in such latter suit, and a Civil
Court cannot try the same issue once again between the same parties or between
the parties under whom they were litigating. The same proposition applies to
issue estoppel. Such a view has been taken by this Court in Shiromani Gurdwara Parbandhak
Committee Vs. Mahant Harnam Singh reported in [2003 (11) SCC 377].
In that matter this Court
was concerned with the issue as to whether a particular sect could be regarded
as a sect belonging to the Sikh religion. That issue had already been decided in
Mahant Harnam Vs. Gurdial Singh reported in [AIR 1967 SC 1415]. At the end of
para 17, of its Judgment this Court, therefore, held as follows:- "The factual
findings relating to the nature and character of the institutions,
specifically, found on an elaborate review of the governing legal principles as
well, and which have reached finality cannot be reagitated and the same is
precluded on the principle of "issue estoppel" also.
As has been rightly contended
by the learned counsel for the respondents, decisions rendered on the peculiar
fact situation specifically found to exist therein cannot have any irreversible
application."This being the position, the issue with respect to the
character of the trust as a Secular Education Trust cannot be permitted to be
reopened.
29.
Then
comes the question as to whether the orders obtained under the above referred
Tamil Nadu Act by three schools belonging to the trust can make any difference.
It is necessary to note in this connection that these orders were obtained from
a Civil Court and were confirmed in appeal. However, we must note that a recognition
of a school as a minority school is to be obtained from a competent authority under
Section 11 of that Act, and not from any Civil Court, and any party aggrieved
by non-grant thereof has a right of appeal under Section 41 of that Act to the
prescribed Authority. Section 53 of the Act clearly lays down that no Civil
Court shall have jurisdiction to decide or deal with any question which is by
or under this Act required to be decided or dealt with by an authority or
officer mentioned in this Act.
Thus, prima facie, it
would appear that the orders were obtained from a forum non-juris. The reliance
on the judgments of the Civil Court though pressed into service before the
single Judge were not taken as a relevant factor for deciding the minority
character of the trust. Now, that this submission is being reiterated, Shri
Ganesh has submitted with some force that these orders are from a Court without
any jurisdiction.
We must note in this
connection, that the statement of objects and reasons of the Act states that
the act was passed to regulate the service conditions of the teaching and non-teaching
staff in private schools and in that context some separate provisions were made
for the minority schools. In the present case, though the declaration was
claimed under the Tamil Nadu Act, it was not obtained from an authority
specifically created for that purpose under the act to give such a status
declaration.
Therefore, in our
understanding these orders cannot be used for determining the character of the trust.
It is also relevant to note that these orders were obtained after the demise of
the founder and not during his life time.
30.
With
respect to an outsider coming in the management, it is to be seen that the
founder had not designated any of the persons on the board by their religion. Thus,
he nominated all the persons in their ex-officio capacity as follows:- (a)
Principal of the school (ex-officio), (b) Headmaster/Headmistress, (c) Warden
of the Hostel (ex- officio), (d) Member elected by the parent association, (e)
Member elected from the staff council, and (f) Three persons having high standard
in the education field nominated by the first five.
When one sees the formation
of this board, one just cannot say that persons other than Christians cannot be
in the management of the institution. Incidentally, we may note that the
nominated Chairman Justice J. Kanakraj, son of Late P. Jacob is a Christian.
The objection of the appellant appears to be only on the basis of the religion
of S. Palamalai, the Executive Trustee and Correspondent of the trust.
31.
Paragraph
8 of Very Rev. Mother Provincial quoted above lays down two tests. The negative
test is that a contribution from other communities to a minority institution and
conferring of benefits of the institution to the majority community are not the
factors which matter in deciding the minority character of the institution. The
positive test is that the intention in founding the institution must be to
found an institution for the benefit of a minority community.
As far as, these
negative testes are concerned, they can be said to be satisfied in the present
case. But the positive test which is more significant namely that the intention
must be to found an institution for the benefit of a minority community, is not
satisfied. We do not find anywhere in the initial declaration made by the
founder that the institution was to be a minority institution. All the trustees
nominated were on ex-officio basis or on the basis of their qualifications and
not on the basis of religion.
The funds and income
was to be utilized for encouraging poor and deserving students irrespective of caste,
creed or religion. It is nowhere stated in that declaration that the trust was
being created for the benefit of the Christian community. Thus the proposition in
Very Rev. Mother Provincial in fact goes against the appellant.
32.
In
the facts of the present case, we may not be required to go to the extreme as
canvassed by Shri Ganesh based on the quotation from judgment in the case of Shirur
Mutt (supra). But, we cannot ignore the proposition laid down in S. Azeez Basha
(supra) namely that if an institution is established by somebody else, meaning thereby
a person belonging to another religion or a secular person, still a religious minority
can claim the right to administer it on the basis of Article 30(1) merely
because he belongs to a minority or for some reason or the other people of a
minority might have been administering it.
In the instant case
the approach of the founder is clearly seen to be a secular approach and he did
not create the trust with any restricted benefits for a religious community. Merely
because he belongs to a particular faith, the persons belonging to that faith cannot
claim exclusive right to administer the trust. The establishment and
administration must be both by and for a minority which is not so in the present
case. Similarly, it is material to note as observed in sub para (ii) and (iii)
of para 19 in Malankara Syrian Catholic College (supra), the right conferred on
minorities under Article 30 is only to ensure equality with the majority and not
intended to place the minorities in a more advantageous position vis-`-vis the majority.
The right to establish
and administer educational institution does not include the right to
maladminister. This being the position in the present case, there is no
occasion for us to apply the propositions in para 63 (6) of All Saints' High
School judgment (supra) or the one in the case of MD. Ismael (supra).
33.
Having
seen the scenario and the legal position, in the facts and circumstances of the
present case, in our view there was no error in the impugned judgment of the
Division Bench of Madras High Court dated 5.12.2002 on O.S.A 49 of 1995 in
holding that T. Thomas Educational Trust is a secular public charitable trust and
not a minority institution.
The High Court was
accordingly justified in framing the scheme under Section 92 of CPC to see to
it that the trust is administered in a better way. We find the scheme to be in
the interest of the trust. We have perused the common order of the Division
Bench dated 21.9.2007 in CMP Nos. 5673 of 2003, 5560 of 2005, 9402 of 2006 and
CMP No. 10340 and 10341 of 2005. The High Court has held on merits that the
appellant had failed to make out any case of mis-management against the
Chairman or the correspondent, and we do not find any error in the High Court
order in that behalf.
We do not find any
merit in the Contempt Petition No. 435 of 2004 either. In the circumstances, Civil
Appeal No. 6786 of 2003, Special Leave Petition (C) Nos. 22590-22591 OF 2007
and Contempt Petition (C) No. 435 of 2004 are all dismissed. There will however
be no order as to costs.
........................................J.
( R.V. Raveendran )
........................................J.
( H.L. Gokhale )
New
Delhi
Dated:
October 13, 2011
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