IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.227 OF 1997. 1. The Institute Menezes Braganza. 2. Dr. Bailon De Sa. ... Petitioners. vs. 1. The State of Goa. 2. Director of Art and Culture ... Respondents. Shri M.B. D’Costa with J.A. Lobo for the petitioners. Shri A.N.S. Nadkarni, Advocate General with Shri V.P. Thali, Additional Advocate General, H.R. Bharne, Government Advocate and H.D. Naik for the Respondent-State. CORAM: CORAM: CORAM: V.C.DAGA AND P.V.HARDAS, JJ. V.C.DAGA AND P.V.HARDAS, JJ. V.C.DAGA AND P.V.HARDAS, JJ. DATED: 10th October 2002. ORAL JUDGMENT ( PER V.C.DAGA, J.) ORAL JUDGMENT ( PER V.C.DAGA, J.) ORAL JUDGMENT ( PER V.C.DAGA, J.) This writ petition under Article 226 of the Constitution of India is at the instance of the Institute Menezes Braganza, the petitioner No.1 and one Dr.Bailon Desai, an Indian Inhabitant, residing at Orlim, Ilhas, Goa, the 2nd petitioner, claiming to be one of the interested persons, competent to challenge the validity of the Goa Portaria Provincial No.332 dated 24th November 1871 Repeal Act, 1997 and Goa (Institute Menezes Braganca) (Supplemental provisions) Act, 1997- Act No.6 of 1997, (hereinafter referred to as the ‘impugned Legislations’ for short), being violative of Articles 14, 19(1)(c), and Article 21, 29 and 300A of the Constitution of India. Crux of the dispute: Crux of the dispute: Crux of the dispute: - 2 - 2. The crux of the dispute is the legislative act of taking over the assets of the petitioner No.1, Institute by the State of Goa. Before tracing the reasons for the impugned legislative action, it would be worthwhile to trace the historical background leading to establishment of the old Indo- Portuguese Institution presently known as " Institute Menezes Braganza ("the said Institute" for short) which was originally known as the " Institute Vasco da Gama" (‘IVG’ for short) founded and established on 22nd September 1871 by the then Portuguese Government by "Portaria Provincial Order No.332 of 24th November 1871" published in the Official Gazette reognising formation of an association Scientific and Literary named "Institute Vasco da Gama" and extending its approval to the statute containing seventeen articles therein. 3. It appears that the said ‘IVG’ functioned for few years and thereafter fell dormant and became defunct and remained so, for about 50 years, right from 1875 to 1925. The need for Literary, Scientific and Cultural institute was again strongly felt in the year 1924 by the then Portuguese Government. Consequently, the then Government issued Portaria/ Provincial Order 105 dated 10th February 1925 and Legislative Diploma No.144 (i.e. Legislative enactment No.144) dated 26th March 1925, and thus revived the said ‘IVG’ and approved an annual grant - 3 - of Rs.10,000/= for the purpose of administration of ‘IVG’. 4. The statutory order No.7883 issued to execute the provisions of para 1 of the Article 5 of the Legislative Diploma No.1932 dated 24.9.1959, approved that the said institute shall be considered as an Official Body. It further appears that on 13.10.1960, new set of statute/ Bye laws were approved by the then Governor General of State of India vide Portaria i.e. Order No. 7883 issued in exercise of powers conferred on him under Article 5 of the Legislative Diploma No.1932 dated 24th September 1959. 5. With the liberation of Goa, the then Lt. Governor by order dated 9th July 1963 changed the name of the ‘IVG’ from Institute Vasco da Gama to institute Menezes Braganza (IBM) with effect from 10th July 1963 as on this day 25th death anniversary of Shri Menezes Braganza was to fall. This change in the name was in acknowledgment of the services rendered by the great Goan patriot and eminent journalist; who was responsible for hastening the end of Portuguese Colonial rule in Goa. Rest of the statute were the same. Thereafter, institute redefined its role on the liberation of Goa with an emphasis on: - 4 - (a) dissemination of findings of scientific studies, history, philosophy, economic science, ethics and law; (b) to stimulate a sense of culture both general and specialised in the younger generation. Since then the said institute is rendering yeomen service in the field of art and culture and has acquired an international reputation. It has one of the finest art collections in India, including signed copies of the great French masters which are archaic and priceless. The said collection has been gathered from various sources including gifts by various donors. 6. It appears that in the year 1991, fresh draft statute was prepared and the same was forwarded to the Respondent- State for its approval. It appears [[that pending approval of this draft statute, in the year 1997, some dispute cropped up with respect to the management and administration of the said institute as some persons claimed to be the Managing Committee of the Institute. It was therefore, felt necessary by the State Government to take over the assets of the said institute under the charge of Directorate of Archives and Archeology and Museum. Government of Goa. With this object, the Government of Goa on 20th March 1997, - 5 - introduced Bill No.14 of 1997, on the floor of the Assembly to achieve the said object. The statement of Objects and Reasons stated in the bill are reproduced hereinunder: By Portaria No.332 dated 24th November 1871, the erstwhile Portuguese Government created an Institution known as Institute Vasco da Gama. Subsequent to the liberation, the then Union Territory Administration , by an order issued by the Lt. Governor in 1963, changed the name from Institute Vasco da Gama to ’Institute Menenzes Braganza’. The Institute had been established as a scientific and literary institute. Only persons of acknowledged merit in science and literature were to be the members of the institute. At present, the institute is managed by few persons. It is felt necessary to take over the assets of the institute, so that valuable artifacts held by the Institute can be maintained and displayed by the Directorate of Archives, archeology - 6 - and Museum. The present bill seeks to achieve the said purpose." During the legislative debate, the said institute was claimed to be a Government institute on the floor of the Assembly. After adopting the Bill, by letter dated 29th April 1997, Shri Vivek Rae, Secretary Department of Education of the Respondent requested the petitioner No.2 to hand over the assets of the Institute to Shri P.P.Shirodkar, Director of Archives, Archeology and Museum of the respondent/State. The Governor extended its assent to the Repeal Bill on 2nd May 1997 and from this date it took effect as the (Portaria Provincial No.332 dated 24th November 1871) Repeal Act, 1997. 7. Aforesaid exercise of legislative power by the State of Goa has given rise to this petition to invoke writ jurisdiction of this Court under Article 226 of the Constitution of India to challenge the constitutional validity of the said legislation on various grounds set out in the petition. Grounds of challenge are to the effect that the fundamental right guaranteed under Clause (1) of sub-clause (c) of Article 19 of the Constitution India has been breached. According to the petitioners, the Goa (Portaria Provincial No.332 dated 24th November 1871) has acquired the assets of the institute which are necessary in - 7 - carrying out the objects of the institute and the abrupt disapproval of assets would deprive the petitioners of the right to continue e the activities of the association to make them more meaningful, effective and purposeful. The petitioners contended that they cannot run the institute and achieve the objects of the institute for want of properties as the same are taken away. The petitioners claim to be entitled to protect their interest more particularly, to conserve the language and culture in exercise of their fundamental right guaranteed under Article 29 of the Constitution of India. According to them, right to conserve cultural heritage; to continue the association and to hold property for exercise of such right are comprehended within their right to life. As such, the petitioners submit that action of Respondent No.1 has also deprived the members of the institute the protection of their fundamental right under Article 21 of the Constitution of India. 8. On being noticed, Respondents appeared and filed their affidavit in reply, duly sworn in by the then Director of Arts and Culture and ex officio Joint Secretary to the Government of Goa, raising certain preliminary objections to the maintainability of the petition and with respect to the locus of the petitioners, the details of which we propose to refer to - 8 - while dealing with the rival contentions. The absence of resolution of the Institute on record alleged to be passed on 27th May 1997 is also pressed into service to defeat the right of the petitioners to prosecute this petition. It is also specifically pleaded in the affidavit in reply, that since the petitioner No.1 - Institute was governed by Portaria of 1960 as amended by the Government Order of 1963, the said institute was always considered as instrumentality of the State although other Portuguese citizens who had rendered outstanding service on diffusion of Portuguese culture were invited to participate and associate with the activities of the institute. 9. It was thus stated that the said institute was being controlled and managed by the Government from its own funds, as such it is not open for the petitioners to challenge the take over legislation on any of the grounds muchless on the ground of breach of fundamental rights alleged in the petition. With the aforesaid rival pleadings on record, the rival contentions were heard. The Arguments: The Arguments: The Arguments: 10. Shri D’costa learned Counsel for the - 9 - petitioners in his usual persuasive manner, contended that the Institute was constituted by private individuals inhabitants of the capital city (Panaji) and all that they did was to get their Bye Laws sanctioned. It was further contended that at no point of time there was any Government intervention in the foundation of the institute or its functioning. The members just got their Bye laws approved from the then Portuguese Government . In due course, the founder members left Goa and the remaining members who were unable to sustain the financial burden, approached the Government for assistance. The then Government requested that the Communicades to render financial assistance, but they refused. Thus the institute remained dormant for 50 years. 11. A Committee thereafter submitted a fresh proposal to the then Government for reorganisation of the institute which had its bye laws approved on 22nd November 1871. By Portaria/ Provincial Order No.106 dated 10th February 1925 the then Government appointed effective members. The then Governor General of Goa by Portaria/Provincial Order No.105 approved the new Statute or Bye laws of the institute created by Portaria/Provincial Order No.332 dated 24th November 1871. Article 1 acknowledged that the institute is a scientific, literary and fine arts establishment and - 10 - there was a promise that it would be provided with Government Building. The bye laws show that the institute is a private institute and it was promised certain privileges, namely subsidies, building etc. He submitted that normally Government takes advantage of financial difficulties to impose conditions more favourable to them. Whenever the Government deals with government property or government servants or government institutions a Legislative Diploma (Diploma Legislative) is enacted by the Legislative Council and Governor assents. But that by itself does not mean that the institute was a Government entity. 12. He took exception to the statements made in the Statement of Objects and Reasons clause and submitted that in Goa (Portuguese Provincial No.332 dated 24th November 1871) Bill contained false statement that the erstwhile Portuguese government created an Institute known as the Institute Vasco da Gama and that the institute was managed by a few persons as such it was necessary to take over the assets of the Institute so that valuable articles held by the institute could be maintained and displayed by the Directorate of Archives, Archeology and Museum. 13. Mr.D’costa, learned Counsel in the first place contended that the question of repealing the Order - 11 - dated 1871 did not arise as that order was defunct. The Statutes or Bye laws of the institute were substituted from time to time. The order which has approved the present statutes or Bye laws of the institute is dated 13th October 1960. The very fact that subsection 2 of section 2 provides that all assets of the institute shall stand vested in the Government shows that these assets were the private property of the Institute In his submission, the Institute is not dissolved and the Managing Committee is not removed. The impugned piece of legislation is an autocratic, arbitrary and unconstitutional piece of legislation. 14. It was further submitted that the Association or Institution has not been dissolved. Without prejudice it is reiterated that the petitioners have a fundamental right to continue the association under Article 19(1)(C) of the Constitution of India The President of the Institute is duly authorised by the General Body to file a petition challenging the government action vide resolution of the general body at page 325 of the paper book. He submitted that the Institute Menezes Bragnanza is a private institute founded by individual citizen residing at Panaji and that there is no specific denial of this fact by the Government in their return, as such it should be treated as an admission of this fact on their part. - 12 - LEGAL LEGAL LEGAL GROUNDS OF ATTACK GROUNDS OF ATTACK GROUNDS OF ATTACK 15. The main grounds of attack set up and canvassed to challenge the action of State centers around the breach of fundamental rights guaranteed under Articles 14, 19(1)(c), 21, 29 and Article 300A of the Constitution of India. The following legal propositions were canvassed by Shri D"Costa and in his well searched submissions he referred to a number of Indian authorities in support of his contentions. It was argued that :- (i) The Institute was a private association of individuals and its primary object was to preserve the Portuguese culture. The persons, who were members of the institute are the citizens of India, having a fundamental right guaranteed by Article 19(1)(c) of the Constitution of India to form an association; which includes the right to continue the association as laid down by the Apex Court in Damayanti vs. Union of India Damayanti vs. Union of India Damayanti vs. Union of India 1971 (1) SCC 678, and State of Madras vs. V.G.Rao State of Madras vs. V.G.Rao State of Madras vs. V.G.Rao 1952 SCR 597. (ii) The persons who were members of the institute being citizens of India have a fundamental right to preserve their distinct language and culture under Article 21 and 29 of the Constitution of India as - 13 - laid down by the Apex Court in Ramsharan Autyanuprasi Ramsharan Autyanuprasi Ramsharan Autyanuprasi vs. Union of India vs. Union of India vs. Union of India 1989 Supp.(1) SCC 251. (iii) The State has deprived the institute of its property without providing for compensation to the institute. At any rate, property is necessary in order to make the exercise of the right to continue the association meaningful, effective and purposeful as such the impugned legislation is violative of Article 21 of the constitution of India. The reliance was placed on the well known judgment of the Apex Court in the cases of Maneka Gandhi vs. Union of India Maneka Gandhi vs. Union of India Maneka Gandhi vs. Union of India 1978 (1) SCC 555. (iv) The Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment as laid down in E.P. Royappa vs. State of E.P. Royappa vs. State of E.P. Royappa vs. State of Tamil Nadu Tamil Nadu Tamil Nadu 1974 (4)SCC 3, and that the law must be right, fair and not arbitrary, fanciful and oppressive. The reasonableness and nonarbitrariness pervades the entire constitution and the principle enshrined in Article 14 "must guide every action whether legislative, executive or judicial" as laid down by the Apex Court in Neelam Misra vs. Harinder Neelam Misra vs. Harinder Neelam Misra vs. Harinder Kaur Kaur Kaur 1990(2) SCC 746 para 29. (v) Where a State deprives cultural association of property without a provision for compensation to the association, no reasonable person - 14 - will consider the provisions as reasonable just and fair as held by the Apex Court in State of Tamil Nadu vs. State of Tamil Nadu vs. State of Tamil Nadu vs. Ananthi Ammal 1995 (1) SCC 519 Ananthi Ammal 1995 (1) SCC 519 Ananthi Ammal 1995 (1) SCC 519 and Godhra Electricity Godhra Electricity Godhra Electricity Co. Ltd., vs. State of Gujarat 1975(1) SCC 199, Co. Ltd., vs. State of Gujarat 1975(1) SCC 199, Co. Ltd., vs. State of Gujarat 1975(1) SCC 199, as such the action is liable to be struck down as violative of Articles 14 and 300-A of the Constitution of India. (vi) No allegation of mismanagement or misuse of the assets of whatsoever nature have been made. No fair procedure or principles of natural justice were followed. No show cause notice of any nature whatsoever; was served on the institute or its members as required and recognised by the Apex Court in Lakshamanan vs. State of Tamil Nadu , para 47 Lakshamanan vs. State of Tamil Nadu , para 47 Lakshamanan vs. State of Tamil Nadu , para 47 1996(2) SCC 226. (vii) The Statements and Reasons for enacting the impugned legislation sets out the reasons as to why the law was enacted. It was because the institute was managed by a few persons. If this be the object, the submission is that legislative action is not inspired by reasons laid down by the Apex Court in Shri Sitaram Sitaram Sitaram Sugar Co. Ltd vs. Union of India 1990(3) SCC 223, Sugar Co. Ltd vs. Union of India 1990(3) SCC 223, Sugar Co. Ltd vs. Union of India 1990(3) SCC 223, therefore, it is liable to be struck down. It was thus prayed that the impugned legislation be struck down being violative of Articles - 15 - 14,19 (1)(c), 21, 29 AND 300-A of the Constitution of India and respondents be directed to forthwith handover all the assets and properties of the institute back to the petitioners. GROUNDS OF DEFENCE GROUNDS OF DEFENCE GROUNDS OF DEFENCE 16. Per contra, Shri A.N.S. Nadkarni, learned Advocate General appearing for the respondents referred to the contents of the counter affidavit and relied upon number of Indian authorities in support of his defence, which are summarised hereinbelow: (a) At the outset two preliminary objections which were raised may be stated: (i) The first relates to the suppression of facts leading to non- disclosure of proper legislative history with respect to the formation and establishment of the institute. (ii) The second relates to the disputed questions of fact which should not be investigated and the question of title should not be gone - 16 - into or decided in a writ petition as laid down in Mahant Moti Das vs Mahant Moti Das vs Mahant Moti Das vs S.P.Sahi S.P.Sahi S.P.Sahi AIR 1959 SC 942. (b) The question of violation of fundamental rights can be decided only on admitted facts or facts taken to be proved as laid down in Kailash Nath vs. Kailash Nath vs. Kailash Nath vs. State of U.P. State of U.P. State of U.P. AIR 1957 SC 790. (c) No material is on record to prove that the Institute was a private body. No pleadings are to be found in the petition as to how, when and under what circumstances petitioner No.2 with others became members of the institute who made them members or as to on what basis they claim title to the institute. A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vacuum as laid down by the Apex Court in Sant Lal vs. State of Punjab, Sant Lal vs. State of Punjab, Sant Lal vs. State of Punjab, AIR 1988 SC 485. (d) The impugned legislation has to be presumed constitutionally valid. It is well settled that there is a strong presumption in favour of the constitutionality of the statute and the burden is upon the person who attacks it; to show that there has been a clear breach by transgression of the constitutional guarantee as held by the Apex Court in the case of Moti Moti Moti - 17 - Das vs. S.P. Sahi, Das vs. S.P. Sahi, Das vs. S.P. Sahi, AIR 1959 SC 942. (e) The institute was a Government institute right from its inception and the expenditure for running the Institute was always spent by the State out of Budgetary provisions. (f) All the time this institute was recognised and treated as Government Institute and as such petitioners have no locus to file this petition. Reliance is placed upon the legislative Diplomas enacted from time to time in support of the submissions. The principal issue: The principal issue: The principal issue: Before we deal with the aforesaid rival contentions canvassed on behalf of the rival parties to the petition, it would be appropriate to first consider the principal issue as to the status of the Institute Menezes Bragnaza. Was it a Institute established by Was it a Institute established by Was it a Institute established by private individuals as contended by the petitioner or a private individuals as contended by the petitioner or a private individuals as contended by the petitioner or a institute controlled and financed by the Government as institute controlled and financed by the Government as institute controlled and financed by the Government as arm of the State to spread Portuguese culture?. arm of the State to spread Portuguese culture?. arm of the State to spread Portuguese culture?. If the Institute is held to be the institute established by private individuals; then only, the various challenges set up by the petitioners will warrant consideration. As such finding on this issue will determine the - 18 - strength of the submissions canvased by the petitioners. Consideration Consideration Consideration 18. Having heard the parties and examined documents on record, one thing is clear that the documents produced by the both parties are not in dispute. Both parties tried their best to interpret these documents in consonance with their respective submissions and tried to take their submissions to the logical end. It is no doubt true that the petitioners did not produce all the relevant documents on record and failed to make complete averments in the petition. But, no motives can be attributed to them. It is not that they were in possession of the information or documents and deliberately did not produce it on record so as to suppress material facts from the Court. 19. The very nature of the controversy relates to the establishment of a Institute which was established as far back as in the year 1871; by the then Government of Portugal. Naturally, the petitioners are not expected to have all accurate information and all relevant documents; especially; when the Institute was defunct for almost 50 years right upto 1925. Whatever documents petitioners had in their possession were produced on record by them. They did not dispute - 19 - documents produced by the respondents. On the contrary, petitioners tried to build up their case on the basis of the documents produced by the respondents. We also do not think that the petition involves disputed questions of fact, warranting any investigation thereof. As a matter of fact, all the relevant facts in the form of documents are on record to answer the issue indicated hereinabove. What is necessary is a proper interpretation of documents to reach to the proper conclusion as to whether or not the institute was established by private individuals or was it controlled and financed by the