*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 1933 & 4614 of 2000 % 31-12-2008 Between: # The Trust Association of the Convention of Baptist Churches of Northern Circars (Regn.No.12/60) rep. by its Attorney Holder Mr.K.Sukumar and another The Trust Association of Convention of Baptist Churches of Northern Circars, (Regd.No.12/60), rep. by its Secretary-cum-Treasurer and Attorney Holder Mr.M.Prasada Rao s/o.Ananda Rao …Petitioners And The Government of Andhra Pradesh, rep. by its Secretary, Education Department (SE/PS-1) Department, Secretariat, Hyderabad. The Revenue Divisional Officer, Kakinada and Special Officer, Mclaurin High School, Kakinada. …Respondents ! COUNSEL FOR PETITIONERS: Mr.K.PRAPTAP REDDY ^ COUNSEL FOR RESPONDENT No.1: G.P.FOR SCHOOL EDUCATION < Gist: > Head Note: ? CITATIONS: [1] AIR 1978 SC 1283 THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY W.P.Nos.1933 of 2000 & 4614 of 2000 COMMON ORDER: In these two writ petitions, G.O.Ms.No.3, Education, dated 10.01.2000 issued by the Government of Andhra Pradesh is challenged. The impugned G.O. was issued proposing to acquire the property of McLaurin High School, Kakinada (for short ‘the school’) under Section 67(1) of the Andhra Pradesh Education Act,1982 (for short ‘the Act’). When the country was under British Rule, an agency known as Canadian Baptist Foreign Mission Board, which was later renamed as Canadian Baptist Overseas Mission Board, was functioning with the object of spreading Christianity. The school was established by the said organization in the year 1911. After independence of India, the Board, while winding up its activity, transferred the management of the school to the Convention of the Baptist Churches of the Northern Circars (for short ‘CBCNC’). As regards the administration of various properties, O.P. No.15 of 1974 was filed in the Madras High Court and in pursuance of the order passed therein, the school was transferred to Trust Association of CBCNC. The school was admitted to grant- in- aid. During 1960’s disputes surfaced as regards the administration of the institution and complaints were received to the effect that the management of the institution was not paying salaries to the teachers. That has given rise to introduction of payment of salaries directly to the teachers. Thereafter steps under Section 24 of the Act read with orders in G.O.Ms.No. 894 dated 9.11.1984 for appointment of Special Officer to the school and vesting the management of the school in him were initiated. Accordingly, Government passed orders dated 5.8.1985 appointing the District Educational Officer as the Special Officer. The District Educational Officer was replaced by the Joint Collector vide proceedings dated 23.9.1985. The Government of Andhra Pradesh initiated steps for taking over the management of the school under Section 60 of the Act. Initially a show cause notice was issued on 30.10.1985 and later a final order was passed in Memo dated 8.5.1986. Writ Petition No.6776 of 1986 filed against the said memo was dismissed on 10.2.1989. The Act provides for acquisition of the property of institution, the management of which was taken over under Section 60 of the Act. After the order passed under Section 60(1) of the Act became final, the Government intended to acquire the property of the institution in exercise of the power under Section 67 of the Act. Accordingly, it issued G.O.Ms.No.523 dated 19.12.1998 in exercise of the power under Section 67 of the Act. Writ Petition No. 2812 of 1989 filed against it was allowed by this court on 9.3.1990. The Secretary to the Government was directed to hear the affected parties and pass fresh orders. Thereafter, the Government passed orders in G.O.Ms.No.234 dated 24.6.1995 acquiring the properties of the school. The Trust, represented by its Secretary and Attorney holder Mr.Prasada Rao filed writ 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 the Government and directing the Secretary to the Government to pass fresh orders 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 its Attorney holder Mr. K.Sukumar and Mr. C.J. R. Sunand, Secretary and Convener. Writ petition No.4614 of 2000 is filed by the same Trust but represented by its Secretary-cum-Treasurer and Attorney holder Mr.M.Prasada Rao. The grounds urged in both the writ petitions are almost same. It is pleaded that the school is a minority educational institution and Chapter XI of the Act does not apply to minority educational institutions as is evident from proviso to sub-section (1) of Section 60 of the Act. It is stated that the reasons mentioned in the G.O. has justification for acquisition, are untenable and the power under Section 67 of the Act was misused. The petitioners contend that the order passed by the Government under Section 60 of the Act has emerged into the order passed under Section 67 of the Act and it cannot be said that the taking over of the management has become final. It is also their case that even assuming that the order passed by this court in writ petition No.6776 of 1986, dated 10.2.1989 has become final, it does not have the effect of taking away, the fundamental rights, guaranteed under the Constitution of India. On behalf of the respondents, a detailed counter affidavit is filed. It is stated that after noticing that there was gross mismanagement of the school, initially steps were taken under Section 24 of the Act and thereafter under Chapter XI of the Act. It is contended that the petitioners do not have the locus standi since they failed to establish their right to manage the institution. Reference is made to the various proceedings that are pending, making rival claims for administration of the institution. According to the respondents, once the order passed under Section 60 of the Act has become final, the power of the Government to take further action under Section 67 of the Act cannot be assailed. Sri K. Pratap Reddy, learned senior counsel advanced arguments on behalf of the petitioners. He contends that the school was established by the Christian Minority and as such no action can be taken against it under Chapter IX of the Act, whether for taking over the management or for acquisition of the properties. He contends that though no appeal was filed against the order in writ petition No.6776 of 1986 filed against the order passed under Section 60 of the Act, its effect has been nullified by specific observations made by this court in its order in writ petition No.16077 of 1995. Placing reliance upon precedents, the learned senior counsel submits that even where there is no specific order conferring or recognizing the minority status, the rights of institution guaranteed under Article 30 of the Constitution cannot be infringed. He submits that the dispute as to management among various groups cannot confer any right on the Government to pass orders contrary to law. Learned Government Pleader for School Education, on the other hand, submits that the very fact that two separate individuals have filed writ petitions on behalf of same Trust discloses that there are serious disputes among themselves and unless they independently prove their right, they cannot maintain any writ petitions. He submits that it is not open to the petitioners to seek protection under Article 30 of the Constitution of India once G.O.Ms.No.894 dated 9.11.1984 passed under Section 24 of the Act and thereafter orders in Memo dated 8.5.1986 issued under Section 60 of the Act have been upheld and became final. He submits that Section 67 of the Act is almost in the form of a consequential action or step incidental, to order passed under Section 60 of the Act. Learned Government Pleader submits that at one stage the management itself requested the Government to take over the administration. He submits that a request was made to restrict the acquisition to Ac.3 -75 cents leaving balance area for the Trust. He contends that the concern of different groups was only vis-à-vis the property, than the welfare of the institution. There is no controversy as to the origin of the school. It was established by Christian organization way back in the year 1911. It is not necessary to refer to the various developments in detail as regards the agency that administered after independence. It was admitted to grant-in-aid and on noticing that there was gross mismanagement and rivalry among large number of groups to manage, initially steps were taken to ensure that the teachers are paid salaries directly. This did not bring any substantial improvement. Therefore, the Government contemplated action under Section 24 of the Act. The provision empowers the concerned authority, not only to declare the person in management of the institution as unfit to manage it, but also appoint another in his place. This however is a temporary measure. Orders under this provision were issued by the Government vide proceedings dated 5.8.1985. Ever since, an official of the Government is in management of the institution. The record discloses that no effective challenge was made to orders passed under Section 24 of the Act. Fairly large number of suits and writ petitions were filed by various groups to gain control over the CBCNC and its institutions. Some of them have agreed for the appointment of Special Officer. The quarrel of concern was mostly about the property around the school than the administration. Their effort was to restrict the area appurtenant to the school to Ac.3-75 cents. At one stage, one of the groups expressed their willingness to part with the area covered by the school buildings. This is evident from the following observation made by this court in its judgment in W.P.No.16077 of 1995. “ The main argument of the learned counsel for the petitioner is that Mclaurin High School was built in a portion of the property of the Canadian Baptist Mission and it has got more than 29 acres of land and the school is built only in an extent of 3 acres 75 cents and the Association is entitled to deal with the property in a manner which promotes the interest of the association and the respondents cannot interfere with their right to manage the properties of the association. They are agreeable to give Ac.3-75 cents to the Government for the public purpose, but they cannot be deprived of the right to manage the property as well as the School.” Appointment of a Special Officer, to the school in exercise of power under Section 24 of the Act is only a temporary measure. With a view to assume the management on a permanent basis, the Government issued a show cause notice dated 30.10.1985 to all the rival groups of the management directing them to explain as to why the management of the school be not assumed to Government, under sub section (1) of Section 60 of 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 CBCNC represented by its President Mr. S.M.Kantha Raju by filing writ petition No.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 assumed the charge for managing the affairs of the institution. A gazette notification to that effect was also published on 31.12.1988. As the institution was taken over and a special officer was appointed, the petitioner cannot agitate the same. The writ petition is accordingly dismissed.” This order became final and thereby the management of the institution stood vested with the Government. It is no doubt true that the definition of “educational institution” under Section 59 of the Act exempts minority educational institutions from the purview of Chapter XI. It reads as under. “educational institution” means any school, college or other institution for imparting education which is managed by an individual, body or local authority and is recognized by the Government, but does not include a minority educational institution” Obviously, because the institution was under the management of Special Officer appointed under Section 24 of the Act since 1984, the petitioner 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 60 of 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 an educational institution or is subject to requisition under sub-section (1) of Section 64, the Government may, if they consider it necessary to acquire the property for any public purpose connected with education, acquire at any time such property for the said public purpose by publishing in the Andhra Pradesh Gazette a notice to the effect that the Government have decided to acquire the property in pursuance of this section.” The first step taken under Section 67 of the Act is the issuance of a show cause notice. After issuing a show cause notice, the Government passed final orders in G.O.Ms.No.523, Education, dated 19.12.1988. This was challenged by filing writ petition No.2815 of 1989. The writ petition was allowed on 9.3.1990. The G.O. was set-aside and it was directed that the affected 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 Section 67 of the Act. The Trust, represented by Mr.Prasada Rao, in his capacity as Secretary and Attorney holder filed writ petition No.16077 of 1995 against the orders in G.O.Ms.No.234. It was strongly urged that Chapter IX of the Act does not apply to the institution. The Government, on the other hand, had taken the plea that once the order passed under Section 60 of the Act became final, the plea that the school is a minority institution cannot be raised. The Government has also objected as to the locus standi of the petitioner therein. In its judgment dated 1.7.1998 in writ petition No.16077 of 1995, this court 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 in any adjudication on merits and secondly, the principle of res judicata does not operate vis-à-vis the rights protected under Article 30 of the Constitution of 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 as locus standi of the petitioner is concerned, it was observed that since there were no rivals to him by that time, he is entitled to pursue the remedies. Ultimately, the order impugned therein was set-aside and the Government was 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 educational institution and the proceedings under Chapter IX of the Act against it are untenable. It is difficult to treat the observations made by this court as final pronouncement on such important aspects. In case the court was convinced that the school is a minority institution and that it is exempted from Chapter IX of this Act, the question of remanding the matter would not have arisen. The very fact that G.O.Ms.No.234 dated 24.6.1995 was set-aside and the matter was remanded to the Government for fresh consideration and disposal indicates that no final pronouncement as such was made as to the character of the institution. Recognizing the status of the school as a minority institution and requiring the Government to pass fresh orders in exercise of power under Section 67 of the Act, do not go together. Acknowledgement of such 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 though institution was established about a century ago by a minority community, the administration of the institution was with the Government for a very long time and in that view of the matter, it cannot be treated as a minority institution. It is relevant to note that the agency which established the school in 1911 did not partake 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, the proceedings were initiated under Chapter IX. Earlier to that, there existed about 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 requested for taking over. Even now, it is not pleaded that the institution is under the management of CBCNC. With the appointment of the Special Officer in the year 1985, the effective management remained with one department or the other, of the Government. Once the order passed under Section 60(1) of the Act has been upheld by this court, the petitioners cannot raise that plea in the provisions under Section 67 of the Act which are nothing but incidental or consequential. It is true that fundamental rights including those guaranteed under Article 30 of the Constitution of India cannot be waived nor does the principle of res judicata apply to them. However, from an overall consideration of the issue it emerges that the school is not under the management of religious organization or institution and the protection under Article 30 of the Constitution of India cannot be extended to it. On account of the fact that there are several groups vying with each other to control with the affairs of the petitioner trust, there is no consistency as to their stand vis-à-vis the proceedings issued by the Government from time to time. It has already been pointed out that one group insisted that acquisition be confined to the area covered by the buildings. Another group headed by one Mr.Gandhi is said to have sold 24 plots out of the acquired property even while proceedings are pending at various stages. The present writ petitions themselves demonstrate the lack of clarity as to the agency that is entitled to administer the affairs of the Trust. Both the writ petitions were filed in the year 2000, assailing the same G.O. Two different persons claim to be Attorneys of the Trust. In the first writ petition, K.Sukumar is mentioned as the Attorney holder and in the second one Mr.Prasada Rao is shown, in the same capacity. Another inconsistency is that Mr. C.J. R.Sunand is described as Secretary and Convener of the Trust in writ petition No.1933 of 2000 and Mr.Prasad Rao is described as Secretary-cum-Treasurer in the other writ petition. Substantial number of proceedings are pending before various courts including this court, for adjudication of the rival claims by different agencies. In this scenario, the plea as to the character of the institution cannot be taken on its face value. Further, it is not as if the Government is trying to appropriate the property for itself. Its effort for the past two decades was only directed towards ensuring proper administration of an institution, established about a century ago. To allay the fears of the petitioners, it can be clarified that the property shall be utilized only for educational institutions and not for any other purpose. This court does not find any legal or factual infirmity in the impugned order. Hence, the writ petitions are dismissed upholding G.O.Ms.No.3, Education, dated 10.1.2000 but directing that the property acquired under the G.O. shall not be put to any use other than for running and establishment of educational institutions by the Government, and that the said property shall not be transferred or made over to any other private or public agency, in any form. There shall be no order as to costs. ____________________ 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 1283