dedol-hf/india-case-legal-rag huggingface dataset:
ing  Colleges  and the total number of seats  available  for
students  in those Colleges are only 395. Out of  these,  21
seats  are  reserved for students coming  from  outside  the
State, 12 seats are reserved for discretionary allotment  by
the State and the balance of the seats available are  appor-
tioned between the same four distinct groups of districts.
    For many years before the commencement of the  Constitu-
tion,  the seats in both the Medical Colleges and the  Engi-
neering  Colleges so apportioned between the  four  distinct
groups  of districts used to be filled up according to  cer-
tain  proportions  set forth in what used to be  called  the
Communal G. O.  Thus, for every 14 seats to be filled by the
selection committee, candidates used to be selected strictly
on the following basis:--
   Non-Brahmin (Hindus)        ...      6
Backward Hindus             ...      2
   Brahmins                    ...      2
   Harijans                    ...      2
   Anglo-Indians and Indian
   Christians                  ....     1
   Muslims                     ...      1
    Subject  to  the aforesaid regional and what  have  been
claimed  to  be protective provisions selection  from  among
the  applicants from a particular community from one of  the
groups  of districts used to be made on  certain  principles
based  on academic qualifications and marks obtained by  the
candidates.   In the case of the Medical Colleges, not  less
than  20 per cent. of the total  number of  seats  available
for  students of the State were filled by  women  candidates
separately  for each region, it being open to the  selection
committee  to admit a larger number of woman  candidates  in
any  region if qualified candidates were available  in  that
region  and  if they were eligible for selection  on  merits
visa  vis the men candidates in accordance with the  general
principles governing such
528
admissions as laid down in those rules. It appears that  the
proportion  fixed in the old Communal G.O. has been  adhered
to even after the commencement of the Constitution on  Janu-
ary  26, 1950.  Indeed, G.O. No. 2208, dated June 16,  1950,
laying down rules for the selection of candidates for admis-
sion into the Medical Colleges substantially reproduces  the
communal proportion fixed in the old Communal G.O.
On  June 7, 1950, Srimathi Champakam Doratrajan made  an
application to the High Court of Judicature at Madras  under
article 226 of the Constitution for protection of her funda-
mental rights under article 15 (1) and article 29 (2) of the
Constitution and prayed for the issue of a writ of  mandamus
or other suitable prerogative writ restraining the State  of
Madras  and all officers and subordinates thereof  from  en-
forcing,  observing, maintaining or following  or  requiring
the enforcement, observance, maintenance or following by the
authorities concerned of the notification or order generally
referred to as the Communal G.O. in and by which  admissions
into the Madras Medical Colleges were sought or purported to
be  regulated in such manner as to infringe and involve  the
violation  of  her fundamental rights.  From  the  affidavit
filed  in support of her petition, it does not  appear  that
the  petitioner  had actually applied for admission  in  the
Medical  College.   She states that on inquiry she  came  to
know  that she would not be admitted to the College  as  she
belonged  to the Brahmin community.  No objection,  however,
was  taken  to the maintainability of her  petition  on  the
ground  of absence of any actual application  for  admission
made  by her.  On the contrary, we have been told  that  the
State  had  agreed  to reserve a seat for  her,  should  her
application  before the High Court succeed. In the  peculiar
circumstances,  we  do not consider it necessary  to  pursue
this  matter any further. But we desire to  guard  ourselves
against  being  understood as holding that we approve  of  a
person  who has not actually applied for admission  into  an
educational  institution  coming  to  Court  complaining  of
infringement of any fundamental right
529
under article 29 (2).  The High Court by its judgment deliv-
ered on July 27, 1950, allowed this application of  Srimathi
Champakam  Dorairajan.  The  State of Madras has now come up
before us on appeal which has been numbered Case No. 270  of
1951.
    Sri  Srinivasan who had actually applied  for  admission
into  the Government Engineering College at Guindy, filed  a
petition  praying for a writ of mandamus or any  other  writ
restraining  the  State of Madras and all  officers  thereof
from  enforcing,  observing, maintaining  or  following  the
Communal G.O. in and by which admission into the Engineering
College  was sought to be regulated in  such manner  as   to
infringe and involve the violation of the fundamental  right
of the petitioner under article 15 (1) and article 29 (2) of
the Constitution.  In the affidavit filed in support of  his
petition,  the petitioner has stated that he had passed  the
Intermediate  Examination held in March, 1950, in  Group  1,
passing the said examination in the first class and  obtain-
ing marks set out in paragraph 1 of his affidavit.  It  will
appear that in the optionals which are taken into considera-
tion   in  determining  the academic test for  admission  in
the  Engineering College the petitioner  Srinivasan  secured
369 marks out of a maximum of 450 marks. The High Court  has
by  the same judgment allowed this application also and  the
State  has  filed an appeal which has been numbered  271  of
1951.  The learned counsel appearing for the State of Madras
conceded that these two applicants would have been  admitted
to  the educational institutions they intended to  join  and
they would not have been denied admission if selections  had
been made on merits alone.
    Article 29 which occurs in Part III of the  Constitution
under  the  head "Cultural and Educational Rights"  runs  as
follows:
   "(1) Any section of the citizens residing in the territo-
ry of India or any part thereof having a distinct  language,
script  or culture of its own shall have the right  to  con-
serve the same.
530
    (2) No citizen shall be denied admission into any educa-
tional institution maintained by the State or receiving  aid
out of State funds on grounds only of religion, race, caste,
language or any of them."
It  will be noticed that while clause (1)  protects  the
language,  script or culture of a section of  the  citizens,
clause (2) guarantees the fundamental right of an individual
citizen.   The right to get admission into  any  educational
institution  of the kind mentioned in clause (2) is a  right
which  an individual citizen has as a citizen and not  as  a
member of any community or class of citizens. This right  is
not to be denied to the citizen on grounds only of religion,
race,  caste,  language or any of them.  If  a  citizen  who
seeks  admission into any such educational  institution  has
not  the  requisite academic qualifications  and  is  denied
admission  on that ground, he certainly cannot be  heard  to
,complain  of an infraction of his fundamental  right  under
this article. But, on the other hand, if he has the academic
qualifications  but is refused admission only on grounds  of
religion,  race, caste, language or any of them, then  there
is a clear breach of his fundamental right.
    The  learned  Advocate-General appearing for  the  State
contends that the provisions of this article have to be read
along with other articles in the Constitution. He urges that
article  46  charges the State with promoting  with  special
care  the  educational and economic interests of the  weaker
sections of the people, and, in particular, of the Scheduled
Castes  and the Scheduled Tribes, and with  protecting  them
from  social injustice and all forms of exploitation. It  is
pointed out that although this article finds a place in Part
IV  of  the Constitution which lays down  certain  directive
principles  of State policy and though the  provisions  con-
tained  in that Part are not enforceable by any  Court,  the
principles  therein laid down are  nevertheless  fundamental
for  the governance of the country and article 37  makes  it
obligatory  on the part of the State to apply those  princi-
ples in making laws.  The argument is that having regard  to
the  provisions  of  article 46, the State  is  entitled  t0
maintain the Communal
531
G.O.  fixing proportionate seats for  different  communities
and if because of that Order, which is thus contended to  be
valid  in law and not in violation of the Constitution,  the
petitioners are unable to get admissions into the education-
al institutions, there is no infringement of their fundamen-
tal  rights. Indeed, the learned Advocate-General of  Madras
even contends that the provisions of article 46 override the
provisions  of  article 29 (2). We reject  the  above  noted
contentions  completely.  The directive  principles  of  the
State  policy, which by article 37 are expressly made  unen-
forceable  by a Court, cannot override the provisions  found
in  Part  III which, notwithstanding other  provisions,  are
expressly  made enforceable by appropriate Writs, Orders  or
directions  under  article 32. The  chapter  of  Fundamental
Rights  is sacrosanct and not liable to be abridged  by  any
Legislative or Executive Act or order, except to the  extent
provided in the appropriate article in Part III. The  direc-
tive  principles of State policy have to conform to and  run
as subsidiary to the Chapter of Fundamental Rights.  In  our
opinion,  that  is the correct way in which  the  provisions
found in Parts III and IV have to be understood. However, so
long as there is no infringement of any Fundamental.  Right,
to the extent conferred by the provisions in Part 1II, there
can  be no objection to the State acting in accordance  with
the  directive  principles set out in Part IV,  but  subject
again  to the Legislative and Executive powers  and  limita-
tions  conferred on the State under different provisions  of
the Constitution.
    In  the next place, it will be noticed that  article  16
which guarantees the fundamental right of equality of oppor-
tunity in matters of public employment and provides that  no
citizen  shall,  on grounds only of religion,  race,  caste,
sex,  descent, place of birth, residence or any of them,  be
ineligible  for, or discriminated against in respect of  any
employment or office under the State also includes a specif-
ic clause in the following terms:-
    "  (4) Nothing in this article shall prevent  the  State
from  making, any provision for the reservation of  appoint-
ments of posts in favour of any backward class
532
of  citizens  which,  in the opinion of the  State,  is  not
adequately represented in the services under the State."
    If  the arguments founded on article 46 were sound  then
clause  (4)of article 16 would have been wholly  unnecessary
and redundant. Seeing, however, that clause (4) was inserted
in  article  16, the omission of such an  express  provision
from  article 29 cannot but be regarded as  significant.  It
may  well be that the intention of the Constitution was  not
to  introduce at all communal considerations in  matters  of
admission into any educational institution maintained by the
State  or receiving aid out of State funds.  The  protection
of  backward classes of citizens may require appointment  of
members of backward classes in State services and the reason
why power has been given to the State to provide for  reser-
vation  of such appointments for backward classes may  under
those  circumstances  be  understood.  That   consideration,
however, was not obviously considered necessary in the  case
of  admission into an educational institution and  that  may
well  be  the reason for the omission from article 29  of  a
clause similar to clause (4) of article 16.
   Take  the case of the petitioner Srinivasan.  It  is  not
disputed that he secured a much larger number of marks  than
the marks secured by many of the Non-Brahmin candidates  and
yet  the Non-Brahmin candidates who secured less  number  of
marks  will be admitted into six out of every 14  seats  but
the petitioner Srinivasan will not be admitted into any  ,of
them. What is the reason for this denial of admission except
that  he  is a Brahmin and not a Non-Brahmin.  He  may  have
secured higher marks than the Anglo-Indian and Indian Chris-
tians or Muslim candidates but, nevertheless, he cannot  get
any of the seats reserved for the last mentioned communities
for  no fault of his except that he is a Brahmin and  not  a
member  of the aforesaid communities. Such denial of  admis-
sion  cannot but be regarded as made on ground only  of  his
caste.
    It is argued that the petitioners are not denied  admis-
sion only because they are Brahmins but for a
533
variety  of reasons, e.g., (a) they are Brahmins, (b)  Brah-
mins  have an allotment of only two seats out of 14 and  (c)
the two seats have already been filled up by more  meritori-
ous Brahmin candidates. This may be true so far as these two
seats reserved for the Brahmins are concerned but this  line
of  argument can have no force when we come to consider  the
seats reserved for candidates of other communities, for,  so
far as those seats are concerned, the petitioners are denied
admission into any of them not on any ground other than  the
sole ground of their being Brahmins and not being members of
the  community lot whom those reservations have  been  made.
The  classification  in the Communal G.O.  proceeds  on  the
basis of religion, race and caste.  In our view, the classi-
fication made in the Communal G.O. is opposed to the Consti-
tution and constitutes a clear violation of the  fundamental
rights  guaranteed to the citizen under article  29(2).   In
this  view  of the matter, we do not find  it  necessary  to
consider  the  effect of articles 14 or 15 on  the  specific
articles discussed above.
    For the reasons stated above, we are of opinion that the
Communal  G.O.  being inconsistent with  the  provisions  of
article 29 (2) in Part III of the Constitution is void under
article  13.  The result, therefore, is that  these  appeals
stand dismissed with costs.
Appeals dismissed.
Agent for the appellant: P.A. Mehta.
Agent for the respondents: M.S.K. Sastri,
534
PETITIONER:
SREE SREE ISWAR GOPAL JIEU THAKUR
        Vs.
RESPONDENT:
PRATAPMAL BAGARIA AND OTHERS.(Civil Appeal No. 95 of 1949)PR
DATE OF JUDGMENT:
14/03/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  214            1951 SCR  322
 CITATOR INFO :
 R          1979 SC1880  (31)
ACT:
    Religious   endowments--Alienation   by   trustee--Legal
necessity --Old transactions--Original parties and witnesses
not available-Value of recitals--Permanent lease--Not  ques-
tioned by successive trustees--Presumption of validity.
HEADNOTE:
    Where the issue is whether there was legal necessity for
a particular transaction, if all the original parties to the
transaction  and those who could have given evidence on  the
relevant  points have passed away, a recital  consisting  of
the  principal  circumstances of the  case  assumes  greater
importance and cannot be lightly set aside.
    Banga  Chandra Dhar  Biswas v. Jagat  Kishore  Chowdhuri
(43 I.A. 249) referred to.
    Where  the  validity of a permanent lease granted  by  a
shebait has remained unquestioned for a very long time since
the  grant, although it is not possible to  ascertain  fully
what the circumstances were in which it was made, the  Court
should assume that the grant was made for necessity so as to
be valid beyond the life time of the grantor.
333
Bawa  Magniram Sitaram v. Kasturbhai Manibhai  (49  I.A.
54) referred to.
JUDGMENT:
    CIVIL APPELLATE JURISDICTION:  Appeals  from"  judgments
and  decrees  of the High Court of  Judicature  at  Calcutta
dated 25th August, 1943, in First Appeals Nos. 20 and 173 of
1939  which arose out of a decision of the President of  the
Calcutta Improvement Tribunal in Case No. 95 of 1935.
Civil Appeals Nos. 95 and 96 of 1949.
    Panchanan Ghose (Upendra Chandra Mullick, with him)  for
the appellant in Civil Appeal No. 95 and respondent in Civil
Appeal No. 96.
    S.P.  Sinha (Nagendra Nath Bose, with him) for  respond-
ents Nos. 1 to 3 in Civil Appeal No. 95 and appellants  Nos.
1 to 3 in Civil Appeal No. 96.
    S.N. Mukherjee, for respondent No. 4 in Civil Appeal No.
95.
 1951. March 14. The judgment of the Court was delivered by
    FAZL  ALl  J.- These appeals are  directed  against  the
judgment and decree of the High Court of Judicature at  Fort
William in West Bengal, confirming a decision of the  Presi-
dent of the Calcutta Improvement Tribunal, which modified an
award of the First Land Acquisition  Collector of  Calcutta,
made  under  the   Land Acquisition Act in  respect  of  the
acquisition  of  two  premises, which  may  conveniently  be
referred to as Nos. 140 and 141, Cotton Street.
   In order to understand the points of contest between the
various  claimants to the compensation awarded in the  case,
it  seems  necessary to refer to certain facts  showing  how
they  came  to be interested in the premises which  are  the
subject-matter  of the land acquisition  proceedings.  These
premises belonged at one time to one Sewanarayan Kalia,  and
afterwards  they became the property of a deity,  Sree  Sree
Iswar Gopal Jieu Thakur, installed  by Sewanarayan Kalia  at
Chinsurah  in the district of Hoogly. Sewanarayan,  who  had
three  wives,  died in 1836, leaving behind  him  his  third
wife, Muni Bibi, two daughters by  his
334
predeceased  wives, these being Jiban Kumari and  Amrit  Ku-
mari, and a mistress named Kissen Dasi. On the 23rd  August,
1836, these persons executed a deed of solenama which was in
the  nature of a family arrangement, by which the  remainder
of  the  estate of Sewanarayan (i.e., what  was  left  after
excluding the dedicated properties) was divided in the terms
of  his will, with the result that Muni Bibi got subject  to
certain  conditions,  among other properties,  the  premises
described  as 140, Cotton Street, and Jiban Kumari  got  the
contiguous  premises, No. 141, Cotton Street. Muni Bibi  and
Jiban  Kumari  also became the she baits of  the  Thakur  or
deity  with power to appoint their successors. On  the  20th
January,  1848,  Muni Bibi by an  arpannama  dedicated  140,
Cotton  Street, to the Thakur. It is recited in  this  deed,
among  other things, that on account of annual droughts  and
inundation  and consequent diminution in the produce of  the
lands, certain properties dedicated to the sewa of the deity
had been sold for arrears of revenue, that "Jiban Kumari had
been making advances from her private funds for the expenses
of jatra, mahotsob etc., of the deity, when the amount  fell
short,  this being against the provisions laid down  by  her
late  husband", that the house known as 140, Cotton  Street,
having  been  let out, was yielding a rent of Rs.  30  p.m.,
that  after  deducting the necessary  expenses  the  surplus
income  left was Rs. 20 p.m., and that "if this  amount  was
included  in the expenses for the sheba etc., of  the  deity
every month, the provision made by her deceased husband  may
remain  in force." After reciting these facts, it is  stated
that  the  rental  of the house "shall  be  permanently  and
perpetually included in the expenses of the sheba." About 20
years later, on the 30th September, 1869, Muni Bibi  created
a permanent (maurasi mokrari) lease of the premises  bearing
No.  140,  Cotton Street, in her capacity as  a  shebait  in
favour  of  one  Nehal Chand Panday (who  was  admittedly  a
benamidar for one Bhairodas Johurry), at a rental of Rs.  25
p.m. (See exhibit L--a kabuliyat executed by Nehal Chand  in
favour of Muni Bibi).  In the same year, on the 8th
335
December, Jiban Kumari granted a permanent lease to  Bhairo-
das Johurry, in respect of the premises known as 141, Cotton
Street at a rental of Rs. 90 p.m. (See exhibit K--a kabuliy-
at executed by Johurry in favour of Jiban Kumari). The  main
question  which has been raised in this case is whether  the
two ladies were competent to give debutter properties by way
of  permanent  lease to another person. In 1870,  Muni  Bibi
died,  and,  on the 15th January,  1872,  Jiban  Kumari  ap-
pointed  Gourimoni Devi a shebait by a registered  deed  and
dedicated  the premises known as 141, Cotton Street, to  the
deity.  Both  Jiban Kumari and Gourimoni Debi  died  shortly
afterwards, and Gopal Das, a minor son of Gourimoni,  became
the  shebait of  the idol. During his minority, his  father,
Raghubar  Dayal, became his certificated guardian,  and,  in
that  capacity, he executed a usufructuary mortgage deed  in
respect  of the Cotton Street properties to one  Lal  Behari
Dutt,  on the 31 August, 1878. After the death  of  Raghubar
Dayal  one Ajodhya Debi and after her one  Kalicharan  Dutta
became  the certificated guardian of Gopal Das, and, on  the
17th  August,  1890,  the  latter  mortgaged  some  debutter
properties  including  140and  141, Cotton  Street,  to  Lal
Behari  Dutt for a sum of Rs. 2,230. On attaining  majority,
Gopaldas executed on the 17th January, 1896, a  usufructuary
mortgage deed in respect of all debutter properties  includ-
ing  the Cotton Street houses in favour of Lal  Behari  Dutt
for paying the previous mortgage dues which amounted on that
date to Rs. 4,955 and odd.  This deed provided among'  other
things  that the mortgagee was to collect rents,  outgoings,
carry  on the sheba of the deity, and that whatever  balance
was left out of the income of the property was to go towards
the  satisfaction  of the mortgage dues.  Gopaldas  died  in
1900, leaving behind him surviving his widow, Annapuma,  who
also died in 1905.  By 1918, Lal Behari Dutt also was  dead,
and  his  interest  in the mortgaged  properties,  to  which
reference has been made, was sold to one Naba Kishor Dutt on
the  12th December, 1918. On the 17th November, 1933, Naba
Kishor assigned the  mortgagee's
336
interest in the mortgaged properties to two of the Bagarias,
respondents  1 and 2 in appeal No. 95, and m the  same  year
the  three respondents (1 to 3) also acquired  the  lessee's
interest in the Cotton  Street houses. The land  acquisition
proceedings,  which have given rise to these  appeals,  were
started  about  the  year 1934 in respect  of  the  premises
bearing  Nos.  140 and 141, Cotton Street, as  well  as  two
adjoining  premises with which we are not concerned in  this
case.  In these proceedings, the following claims  were  put
forward by three sets of persons:--
    1. The Bagarias (respondents 1 to 3 in appeal No. 95) at
first  claimed  the  entire amount of  compensation  on  the
allegation  that they were the absolute owners of the  prem-
ises in question, but later on they claimed only as  mortga-
gees and permanent lessees of those premises.
    2. On behalf of the deity, the entire amount of  compen-
sation money was claimed by Deosaran Singh and Ram  Lakshman
Singh,  who alleged themselves to be shebaits, on the  basis
that  the premises in question were debutter  properties  of
the deity, and the Bagarias had acquired no interest therein
either by the assignment of the usufructuary mortgage or the
alleged purchase of the tenant's rights in the properties.
    3.   Respondent No. 4 claimed compensation as  a  lessee
for  99 years on the basis of a lease alleged to  have  been
given to him by the original landlords.
    In the present appeals, we are concerned with the  first
two  claims only, and we shall briefly state how  they  were
dealt  with  by the Collector and the courts below.  On  the
22nd May, 1935, the Collector awarded Rs. 31,740 as  compen-
sation  for landlord's interests, to be shared by the  deity