Civil Appeal No 2821 of 1987 From the Judgment and order dated 491986 of the Jammu and Kashmir High Court in 15 Civil 2nd Appeal of 1975
DD Thakur EC Agarwal Atul Sharma Vijay Pandit and 558 Ms Poornima Bhatt for the Appellants
Anil Dev Singh Dr Meera Agarwal RC Mishra and Mushtaq Ahmed for the Respondent
The Judgment of the Court was delivered by KANIA J
This is an appeal against the judgment of a learned Single Judge of the High Court of Jammu  Kashmir in a Second Appeal
The Appellants are the heirs and legal representatives of one Indro Devi
The Respondent is the heir and legal representative of one Raghunath Dass Lakra
Very few facts are necessary for the disposal of the Appeal before us
The dispute relates to a piece of land measuring 4 marlas and 99 sq
situated at Residency Road in Jammu
This land was granted to one Attar Chand by the Government of Kashmir on a long lease
As per the practice prevailing in the State of Jammu  Kashmir he was known as the Wasidar in respect of the said land
On his death his son Guranditta Mal inherited the lease hold rights of Attar Chand and on the death of Guranditta Mal his widow Indro Devi who was the original plaintiff inherited the lease hold rights under the said lease on the basis of a Will executed by Guranditta Mal in her favour
Guranditta Mal during his life time in 1954 had granted a sub lease of the said land to Raghunath the father of the Respondent herein
Indro Devi instituted a suit in the Court of the learned Sub Judge Jammu for recovery of possession of the said land on the ground that Reghunath Dass had sub let the house constructed by Raghunath Dass on the said land and was liable to be evicted under the provisions of the Transfer of Property Act read with Section 11 of the Jammu  Kashmir Houses and Shops Rent Control Act hereinafter referred to as the J  K Rent Act
She also contended that the land was required by her bona fide for occupation by her and her family
The period of the said sub lease had expired and it was alleged that in the aforesaid circumstances the respondent was liable to be evicted
These allegations were denied by the Respondent
It was inter alia contended by the Respondent that the sub lease granted to Raghunath was void ab initio
It was held by the learned Sub Judge that the ground of bona fide requirement of the landlord as well as unlawful sub letting by the sub lessee had been established
It was further held that the sub lease granted by Guranditta Mal to 559 Raghunath was valid
On these findings the suit was decreed
This decision was upheld on first appeal by the learned Additional District Judge Jammu before whom an appeal was preferred and the findings of the learned Sub Judge were upheld by him
On a Second Appeal preferred to the High Court the learned Single Judge of the High Court took the view that the sub lease granted by Guranditta Mal to Raghunath Dass was void as it violated the provisions of Rule 35 of Wasidari Rules in as much as it amounted to a transfer of immovable property and hence it amounted to a transfer of the leased land by the Government to the Wasidar under the provisions of the Wasidari Rules As no permission of the Government was taken for granting the said sub lease the sub lease was void as against the provisions of the Wasdari Rules
The learned Single Judge rejected the contention urged on behalf of the Appellants herein that the transfer made by Guranditta Mal was of a mere interest in the lease hold and did not amount to a transfer of the land leased as contemplated under Rule 35 of the said Wasidari Rules
The learned Single Judge without considering what would be the effect of the sub lease being void has somehow come to the conclusion that in view of the sub lease being void the suit filed by the Appellants herein must be dismissed and took the view that the appeal before the learned Judge must be allowed and the suit filed by the Appellants must be dismissed
It is this decision which is challenged by the Appellants in the present Appeal preferred by Special Leave
In our view the Appeal can be shortly disposed of and the Appellants are entitled to succeed
Even assuming that the sub lease granted by Guranditta Mal in favour of Raghunath the father of the Respondent was void the result would be that the Respondent and his father would be persons without any legal interest in the said land
Indro Devi and the Appellants being the lessees of the said land were suing on their own title and not relying on the sub lease and hence they were entitled to evict the Respondent who had no title or interest in the said land
If a view is taken that the sub lease in favour of Raghunath was valid in that event as held by both the Courts below as grounds for eviction set out in Section 11 of the J  K Rent Act have been made out the Respondent ceased to be entitled to the protection of the said Act and was liable to be evicted as the term of his sub lease had expired
It was strenuously sought to be contended by Mr Anil Dev Singh learned Counsel for the Respondent that the provisions of Section 12A af the Jammu  Kashmir Land Grants Act 1960 as 560 amended in 1969 by the Jammu  Kashmir Land Grants Amend ment Act 1969 provided that if any person holding land on lease granted under that Act or under any of the rules referred to in the said section effects or has ever effected before the commencement of the said Act of 1969 transfer of any right in such land without the permission of the Government or any authority empowered in that behalf the lease of such land would be determined and would be deemed always to have been determined with effect from the date such transfer is or has been effected
It was submitted by him that the land held by the Appellants and their predecessors in title from the Government was under a lease granted under some of the rules referred to in Section 12A
It was contended by him that the sub lease was admittedly granted without the permission of the Government and in view of the said sub lease granted by Guranditta Mal the title of Guranditta Mal and his successors in the land in question under the lease granted by the Government itself came to an end
It was urged by him that in these circumstances the title of the Appellants to the said land had itself been extinguished and they were not entitled to sue for recovery of possession of the said land
In our view this contention is not open to the Respondent at all
It was nowhere contended by the Respondent either before the learned Sub Judge or before the Additional District Judge or even in the Second Appeal before the High Court that the title of the Appellants and his predecessors in title to the said land under the lease granted by the Government had come to an end in the aforestated circumstances
Had the plea been taken earlier it is possible that the Appellants might have pleaded facts to show that their lease had not come to an end or that it had been renewed after the sub lease was granted
Hence allowing such a plea at this stage might cause prejudice to the Appellants
Some decisions of this Court were shown to us by Mr Anil Dev Singh where a new plea purely based on law was allowed to be taken even at the stage of the Appeal before the Supreme Court
However in our view those decisions can have no application whatever in a case like one before us where allowing of such a plea might cause prejudice to the Appellants
In our opinion it is unfortunate that the learned Single Judge of the High Court who decided the Second Appeal did not proceed to consider at all the effect of the sub lease granted to Raghunath being void and we find it difficult to understand how merely on the basis of the sub lease being void he came to the conclusion that the suit filed by Indro Devi in the Court of learned Sub Judge was liable to be dismissed
Had the learned Judge considered this point he would have surely realised that the Respondent had no title in the said land in view 561 Of the sub lease being void and was liable to be evicted by a party suing on his own title
Coming to the finding regarding the sub letting by the respondent and his father and the bona fide requirement of Indro Devi these are both essentially issues of fact and have been decided in favour of Indro Devi the mother of the Appellants and their predecessors intitle
Those findings do not appear to have been seriously challenged before the High Court at all and hence there is no reason why we should go into the question as to whether those findings are correct in this appeal
In the result the appeal succceds and is allowed
The judgment of the learned Single Judge is set aside and judgment and other passed by the learned Sub Judge is restored
However consider all the facts and circumstances of the case we are of the view that the parties must bear and pay their own costs in this Court are there will be an order accordingly
GN Appeal allowed


Summary:
This was a reference under article 1431 of the Constitution made by the President of India for obtaining the opinion of the 996 Court upon certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill 1957 which had been passed by the Kerala Legislative Assembly but was reserved by the Governor for the consideration of the President
The Bill as its title and preamble indicated had for its object the better Organisation and development of the educational service throughout the State presumably in implementation of the provisions of article 45 of the Constitution and conferred wide powers of control on the State Government in respect of both aided and recognised institutions
Of the four questions referred to this Court the first and third impugned cl
35 read with cl 36 and cl 15 of the Bill as being discriminatory under article 14 the second impugned cls
35 83 and cls
9 to 13 Of the Bill as being violative of minority rights guaranteed by article 301 and the fourth cl 33 of the Bill as offending article 226 of the Constitution
Clause 35 of the Bill made the recognition of new schools subject to the other provisions of the Bill and the rules framed by the Government under cl
36 Cl
15 authorised the Government to acquire any category of Schools cl
83 made it obligatory on all aided schools to hand over the fees to the Government cls
9 to 13 made provisions for the regulation and management of the schools payment of salary to the teachers and the terms and conditions of their appointment and cl
33 forbade the granting of temporary injunctions and interim orders in restraint of proceedings under the Act
This Court took the view that since cl
35 attracted the other provisions of the Bill in case anyone of them was found to be unconstitutional cl
35 itself could not escape censure
Held per Das C J Bhagwati B P Sinha Jafer Imam section K Das and J L Kapur JJ that although article 1431 Of the Constitution which virtually reproduced the provisions of section 2131 of the Government of India Act 1935 gave this Court the discretion where it thought fit to decline to express any opinion on the questions referred to it the objection that such questions related not to a statute brought into force but to the validity of a Bill that was yet to be enacted could be no ground for declining to entertain the reference
Article 1431 of the Constitution had for its object the removal of the doubts at the President and was in no way concerned with any doubts that a party might entertain and no reference could be incomplete or incompetent on the ground that it did not include other questions that could have been included in it and it was not for this Court to go beyond the reference and discuss them
The Advisory jurisdiction conferred by article 1431 was different from that conferred by article 1432 of the Constitution in that the latter made it obligatory on this Court to answer the reference
In re Levy of Estate Duty  relied on
997 Attorney General for Ontario vs Hamilton Street Railway  Attorney General for British Columbia vs Attorney General for Canada  ln re The Regulation and Control of Aeronautics In Canada 1932 A C 54 In re Allocation of Lands and Buildings 1943 F C R 20 and In Ye    considered
A directive principle of State policy could not override a fundamental right and must subserve it but no Court should in determining the ambit of a fundamental right entirely ignore a directive principle but should try to give as much effect to both as possible by adopting the principle of harmonious construction
State of Madras vs Smt
Champakam Doraiyajan 1951 SCR 525 and Mohd Hanif Quayeshi vs The State of Bihar   referred to
In answering the questions under reference the merits or otherwise of the policy of the Government sponsoring the Bill could be no concern of this Court and its sole duty was to pronounce its opinion on the constitutional validity of such provisions of the Bill as were covered by the questions
judged in the light of the principles laid down by a series of decisions of this Court explaining article 14 Of the Constitution the clauses of the Bill that came within questions 1 and 3 could not be said to be violative of that Article
The restriction imposed by cl
35 read with cl 26 of the Bill which made it obligatory on the guardians to send their wards to a Government or a private school in an area of compulsion and thus made it impossible for a new school in such area seeking neither aid nor recognition to function could not be said to be discriminatory since the State knew best the needs of its people and such discrimination was quite permissible based as it was on geographical classification
Mohd Hanif Ouareshi vs The State of Bihar 1959 section C R 629 Chiyanjit Lal Chowdhury vs The Union of India  Ramkrishna Dalmia vs Sri justice section R Tendolkar   referred to
No statute could be discriminatory unless its provisions discriminated and since the provisions of the Bill did not do so it could not be said to have violated equal protection of law by its uniform application to all educational institutions although not similarly situate
Cumberland Coal Co vs Board of Revision 1931 284 U section 23   held inapplicable
The policy and purpose of a statute could be deduced from its long title and the preamble
The impugned Bill laid down its policy in the long title and the preamble and reinforced it by 998 more definite statements in the different clauses and consequently such discretion as it left to the Government had to be exercised in implementing that policy
The use of the word may in cl
33 could make no difference for once the purpose was established and the conditions of the exercise of the discretion were fulfilled it was incumbent on the Government to exercise it in furtherance of that purpose
If it failed to do so the failure and not the Bill must be censured
Biswambar Singh vs The State of Orissa  and Julius vs Lord Bishop of Oxford 1880 5 App
CaS 214 referred to
Discretionary power was not necessarily discriminatory and abuse of power by the Government could not be lightly assumed
Apart from laying down the policy the State Legislature provided for effective control by itself by cl 37 and the proviso to cl 15 of the Bill
It could not therefore be said that the Bill conferred unguided or uncontrolled powers on the Government
Article 301 Of the Constitution which was a necessary concomitant to article 291 and gave the minorities the right to establish and administer their institutions did not define the word minority  nor was it defined anywhere else by the Constitution but it was absurd to suggest that a minority or section envisaged by article 301 and article 291 could mean only such persons as constituted a numerical minority in the particular region where the educational institution was situated or resided under a local authority
Article 350 A of the Constitution properly construed could lend no support to such a proposition
As the impugned Bill extended to the entire State minorities in the State must be determined on the basis of its entire population and thus the Christians the Muslims and the Anglo Indians would be its minority communities
Article 301 of the Constitution made no distinction between minority institutions existing from before the Constitution or established thereafter and protected both
It did not require that a minority institution should be confined to the members of the community to which it belonged and a minority institution could not cease to be so by admitting a non member to it
Nor did article 301 in any way limit the subjects to be taught in a minority institution and its crucial words  of their own choice  clearly indicated that the ambit of the rights it conferred was determinable by the nature of the institutions that the minority communities chose to establish and the three categories into which such institutions could thus be classified were 1 those that sought neither aid nor recognition from the State 2 those that sought aid and 3 those that sought recognition but not aid
The impugned Bill was concerned only with institutions of the second and third categories
999 The word aid  used by articles 292 and 302 included grant  under article 337 of the Constitution and that word occurring in the Bill must have the same meaning
Consequently such clauses of the Bill mentioned in question No 2 as imposed fresh and stringent conditions precedent to such grant over and above those to which it was subject under articles 337 and 292 violated not only article 337 but also in substance and effect article 301 of the Constitution and were to that extent void
Rashid Ahmad vs Municipal Board Kaiyana   Mohd Yasin vs The Town Area Committee jalalabad  and The State of Bombay vs Bombay Education Society   referred to
Although there was no constitutional right to the grant of aid except for Anglo Indian educational institutions under article 337 Of the Constitution State aid was indispensable to educational institutions and Arts 282 292 and 302 clearly contemplated the grant of such aid and articles 41 and 46 charged the State with the duty of aiding educational institutions and promoting such interests of the minorities
But the right of the minorities to administer their educa tional institutions under article 301 was not inconsistent with the right of the State to insist on proper safeguards against maladministration by imposing reasonable regulations as conditions precedent to the grant of aid
That did not however mean that the State Legislature could in the exercise of its powers of legislation under articles 245 and 246 of the Constitution override the fundamental rights by employing indirect methods for what it had no power to do directly it could not do indirectly
So judged cl
35 of the Bill by bringing into operation and imposing cls
14 and 15 as conditions precedent to the grant of aid violated article 301 of the Constitution
Similar considerations applied to the grant of State recognition as well
No minority institution could fulfill its real object or effectively exercise its rights under article 301 without State recognition as otherwise it would not be open to its scholars under the Education Code to avail of the opportunities for higher education in the University or enter the public services
While it was undoubtedly true that there could be no fundamental right to State recognition denial of recognition except on such terms as virtually amounted to a surrender of the right to administer the institution must in substance and effect infringe article 301 of the Constitution
Clause 35 read with Cl 20 of the Bill in forbidding the charging of tuition fees in the primary classes deprived the minority institutions of a fruitful source of income without compensation as was provided by cl
9 for aided schools and thus imposed a condition precedent to State recognition which was in 127 1000 effect violative of article 301 and was therefore void to that extent
No rules when framed under the Act could cure such invalidity
Article 45 of the Constitution did not require the State Government to provide free and compulsory education to the detriment of minority rights guaranteed by the Constitutionif the Government so chose it could do so through the Government and aided schools and this Court was in duty bound to uphold such fundamental rights as the Constitution had thought fit to confer on the minority communities
The wide powers and jurisdiction conferred on the High Courts by article 226 of the Constitution could not be affected by a provision such as cl
33 of the Bill which forbade Courts to issue temporary injunctions or interim orders in restraint of any proceedings thereunder and it must be read as subject to the overriding provisions of article 226 of the Constitution
Venkatarama Aiyar J
It was obvious that article 301 Of the Constitution did not in terms confer a right on the minority institutions to State recognition nor properly construed could it do so by implication for such an implication if raised would be contrary to the express provisions of article 45 Of the Constitution
Article 301 was primarily intended to protect such minority institutions as imparted purely religious education and to hold that the State was bound thereunder to recognise them would be not only to render article 45 wholly infructuous but also to nullify the basic concept of the Constitution itself namely its secular character
There was no conflict here between a fundamental right and a directive principle of State policy that must yield and the principle of article 45 must have full play
Clause 20 of the Bill was designed to enforce that principle and cl
35 Of the Bill in making it a condition precedent to State recognition could not violate article 301 Of the Constitution
Nor could a consideration of the policy behind article 301 lead to a different conclusion assuming that the question of policy could be gone into apart from the language since that policy was no other than that the majority community of the State should not have the power to destroy or impair the religious or linguistic rights of the minority communities
The only two obligations one a positive and the other a negative that article 301 read with articles 25 26 29 and 302 of the Constitution imposed on the State were 1 to extend equal treatment as regards aid or recognition to all educational institutions including those of the minorities religious or linguistic and 2 not to prohibit the establishment of minority institutions or to interfere with their administration
To hold that the State Government was further bound under article 301 to accord recognition to minority institutions would be 1001 to put the minorities in a more favoured position than the majority community which the Constitution never contemplated
City Winnipeg vs Barrett  City of Winnipeg vs Logan  referred to