Mohd. Matloob Khan And 6 Ors. vs State Of U.P. And 9 Ors.
2017 Latest Caselaw 2847 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 10						A.F.R.
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 84 of 2017
 

 
Appellant :- Mohd. Matloob Khan And 6 Ors.
 
Respondent :- State Of U.P. And 9 Ors.
 
Counsel for Appellant :- Ram Dayal Tiwari,M.D.Singh Shekhar
 
Counsel for Respondent :- C.S.C.
 

 
With
 
PECIAL APPEAL DEFECTIVE No. - 85 of 2017
 
Appellant :- Aslam Khan And 4 Ors.
 
Respondent :- State Of U.P. And 7 Ors.
 
Counsel for Appellant :- Ram Dayal Tiwari,M.D. Singh Shekhar
 
Counsel for Respondent :- C.S.C.,Anoop Trivedi
 

 
                                                With
 
Case :- SPECIAL APPEAL No. - 82 of 2017
 

 
Appellant :- C/M Bara Intermediate College And 2 Others
 
Respondent :- Aslam Khan And 22 Others
 
Counsel for Appellant :- Chetan Chatterjee
 
Counsel for Respondent :- C.S.C.,Arvind Srivastava,Ram Dayal Tiwari
 
With
 

 
Case :- SPECIAL APPEAL No. - 83 of 2017
 

 
Appellant :- C/M Bara Intermediate College And 2 Others
 
Respondent :- Mohd. Matloob Khan And 13 Others
 
Counsel for Appellant :- Chetan Chatterjee
 
Counsel for Respondent :- C.S.C.,Ram Dayal Tiwari
 

 
With
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 16 of 2017
 

 
Appellant :- Abdul Malik And 3 Others
 
Respondent :- State Of U.P. And 15 Others
 
Counsel for Appellant :- Mohd. Ibrar Khan,Ashok Khare
 
Counsel for Respondent :- C.S.C.,R.D.Tiwari
 
With
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 17 of 2017
 

 
Appellant :- Abdul Malik And 3 Others
 
Respondent :- State Of U.P. And 13 Others
 
Counsel for Appellant :- Mohd. Ibrar Khan,Ashok Khare
 
Counsel for Respondent :- C.S.C.,R.D.Tiwari
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ritu Raj Awasthi,J.

These are Six Appeals against a common judgment of the learned Single Judge dated 30.11.2016 passed in Writ Petition Nos. 23297 of 2016 (Aslam Khan and 13 Ors) connected with writ petition 36710 of 2016 (Mohd. Matloob Khan and 6 Ors).

Special Appeal No. 82 of 2017 and Special Appeal No. 83 of 2017 have been filed by the Committee of Management of Bara Inter College, Bara District Ghazipur through its Manager Appeal No. 16 of 2017 and 17 of 2017 have been filed by teachers and employees who had been appointed in the said institution, treating it to be minority institution while Appeal No. 84 of 2017 and Appeal No. 85 of 2017 have been filed by the writ petitioners against last part of the order of the learned Single Judge, whereby he has remanded the matter to the Commission for re-hearing on the issue as to whether the Institution in question is to be treated/declared a minority institution.

We have heard Chetan Chatterjee, Advocate on behalf of the Committee of Management of the Institution Sri. Ashok Khare, Senior Advocate assisted by Mohammad Abrar Khan on behalf of the teachers and employees who had been appointed in the Institution and Sri. M.D. Singh Shekhar Senior Advocate, assisted by Amrita Mishra on behalf of the petitioners/appellants in all these six special appeals as well as Standing Counsel on behalf of State-respondents.

The facts relevant for leading these appeals are as under:

National Association, Bara was established as a society registered under the Societies Registration Act, 1860 in District Ghazipur in the year 1947. The said society established an institution in the name of Junior High School, Bara District Ghazipur in the year 1948.

The Institution was upgraded to the level of Higher Secondary Shcool after grant of due recognition in the year 1966 and thereafter as an Intermediate College after grant of recognition as such by the U.P. Board for High School and Intermediate in the year 1972 under the Provisions of the Intermediate Education Act, 1921 (hereinafter referred to as Act, 1921).

The name of the Institution was changed and now reads as Bara Inter College, Bara District Ghazipur. The Institution is aided and covered by the provisions of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as ' Act 1971'). There was no issue with regard to the status of the institution between 1948 to 1995.

However, in the year, 1995 the State Government stated to have conferred the minority status upon the institution vide Government order dated 13th March, 1995. The conferment of minority status came to be challegned before the High Court by means of the writ petition No. 7827 of 1998 the writ petition was allowed by the learned Single Judge vide order dated 5.4.1999, following the law laid down by the Apex Court in the case of S. Azeez Basha And Anr Vs. Union of India, AIR 1968 Supreme Court 662.

The learned Single Judge specifically examined the material which was brought on record by the Committee of Management to claim minority status and which was placed before the State Government for the purpose. This writ Court returned a categorical findings of fact that the Institution had not been established by the minority community and for arriving at the said conclusion amongst other, it was noticed that there were 7 Members belonging to the majority community, who had participated in the establishment of the society which created the Institution. It was further recorded that the membership of the society was open to all categories of persons irrespective of the community to which he belonged. On payment of Rs. 500/- he would become a patron member while on payment of other amount as mentioned in the bye laws, a person would become a life member or an ordinary member.

It was, therefore, held that the membership of the society was not restricted to the minority communities only.

From the reading of the aims and objects of the society it was clear that there was no intention to establish any minority institution for protecting the language or religion of any particular minority community. On the contrary the intention was to impart education general and technical to the students belonging to the different communities.

The learned Single Judge also took note of the fact on the memorandum of Associations out of 21 persons, 7 persons were the members of majority community and were not Muslims.

On these findings recorded with reference to the evidence, brought on record, the learned Single Judge went on to hold that the Institution in question had not been established by the Muslims minority community and, therefore, the question of the institution being treated to be a minority institution, in view of the law explained by the Apex Court in the case of S. Azeez Pasha (Supra) did not arise.

This order and conclusions drawn by the learned Single Judge with regard to the establishment of an Institution, where subject matter of challenge by the Committee of Management of the same Institution by way of intra-Court-appeal before the Division Bench of this Court being Special Appeal No. 401 of 1999. The Appeal was dismissed by the Division Bench of this Court vide order dated 11.09.2012 in totto and the judgment and the order of the learned Single Judge including the findings returned on the issue of establishment of the Institution where affirmed.

It is admitted to the parties before us that the judgment and order of the learned Single Judge as affirmed by the Division Bench qua the establishment of the Institution having not been done by the minority community stands on record and has become final between the parties, as the judgment have not been subjected to any further challenge.

In our opinion, the findings so returned by the writ Court as affirmed by the Division Bench are binding between the parties. It is no more open for the Committee of Management to setup any new case before any authority for claiming itself to be a minority institution the chapter stands closed with the judgment and order of the writ Court and its affirmance by Division Bench.

The Committee of Management of the Institution however approached the National Commission under the provisions of National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as the 'Act' 2004). The National Commission by means of the order dated 08.12.2014 declared the Institution as a minority institution.

This order of the National Commission dated 8.12.2014 was challenged before the writ Court by means of petition No. 23297 of 2016 and writ petition No. 36710 of 2016. The learned Single Judge under the judgment and order dated 30.11.2016 has taken note of the litigation with regard to the status of the Institution as detailed above as well as judgment in the Apex Court in the case of S.Azeez Pasha (supra) for returning a finding that there has been complete non-consideration of the issue of establishment of the institution at the hands of the Commission before granting the status of minority institution. The learned Single Judge has however proceeded to remand the matter to the Commission even after noticing that once a binding adjudication has taken place before the High Court, the Commission may not have any jurisdiction to grant any declaration to the contrary.

It is against the last part of the direction so issued by the learned Single Judge remanding the matter to the Commission for decision afresh on the issue of the status of the institution that the petitioners have filed this intra Court appeal. The direction issued by the learned Single Judge as contained in paragraph 17 and 18 by which the petitioners/appellants are aggreived is being reproduced hereunder:-

"17. In the facts of the present case, once a binding adjudication of this Court existed on record, the Commission had no jurisdiction to grant a contrary declaration without having examined such orders or examining the binding effect of it upon the Commission. In such view of the matter, this Court is of the opinion that the order passed by the Commission on 8.12.2014 as well as consequential certificate as well as communication of the State Government, under challenge in the present writ petition, cannot be sustained, and are hereby quashed.

18. Liberty, however, is reserved to the Manager of the Institution to make a fresh application for such purposes before the Commission. The Commission shall examine the orders passed by this Court, and it shall be open for it to take a fresh decision, in accordance with law. It is further clarified that any action undertaken by the institution, including any appointment made treating it to be a minority status also, must fail, in the facts and circumstances of the present case, particularly as such appointments were made subject to the determination of the present writ petitions. It goes without saying that in case such a application is made, petitioners shall also be heard in the matter."

Sri M.D. Singh Sekhar, Senior Advocate on behalf of the appellant would contend before us that the finding returned by the writ Court on the issues of fact and law is binding inter-se between the parties to the litigation. Since the Committee of Management of the Institution and the present petitioners/appellants were parties in earlier round of litigation, the finding returned by the writ Court while deciding Writ Petition No. 7827 of 1995 since affirmed by the Division Bench as per judgment dated 11.9.2012 has to held as conclusive.

He explains that the establishment of the Institution having been done not by the minority community alone stands as per the judgments referred to above and would be inter-se binding between the parties to the litigation. The question of such finding being binding upon the commission is totally out of context and therefore, the learned Single Judge was not justified in framing the issue as to whether the findings returned by the writ Court with regard to the establishment of the Institution needs to be examined by the Commission as it has to be examined that it would bind the Commission or not.

In our opinion, counsel for the Committee of Management and the counsel for the teachers and employees who have been appointed treating the instituion to be a minority insitution would contend that the National Commission has been established for a specific prupose and therefore it can revisit the enitre isssue. If the Commssion is satisfied with the establisment and management of the Insitution being done by the Minority Community there was little for the Court to entertain the writ petition. The High Court under Article 226 of the Constitution of India exercises constitutional powers. Any Commission established under an Act of Parliament would always be bound by the findings returned under the judgment of the Constitutional Court having jurisdiction over the matter. The Commission cannot sit in appeal over the findings returned by the competent writ court which stands affirmed with the dismissal of special appeal as noticed above.

The findings recorded by the writ court under Article 226 of the Constitution of India can only be upturned by the Higher Court i.e. the Apex Court in exercise of powers either Article 32 of the Constitution of India or under special leave to appeal to be filed under Article 136 of the Constitution of India.

The findings recorded by the writ Court with regard qua the establishment of the institution having not been so done by a minority community cannot in any way be revisited by the National Commission under the Act of 2004.

We are, therefore, of the opinion that the learned single Judge was not justified in remanding the matter to the commission for examining as to whether the finding returned by the writ Court in earlier round of litigation inter-se between the parties would bind the commission or not.

We may highlight that while the State has been given a power to frame law for knocking out the basis of a judgment but has no power to frame a law contrary to the law Refrence may be hald to the Constitution Bench of the Apex Court in the case of S. Azeez Basha And Anr Vs. Union of India, AIR 1968 Supreme Court 662.

For all the aforesaid reasons, we are of the considered opinion that the commission could not have been entertained any application on behalf of the Committee of Management of National College for confirming the status of a minority institution, once the writ Court had returned a finding that the insitution had not been established by the minority community.

It cannot be questioned that for claiming the status of the Minority Institution under Article 30 of the Constitution of India, two things have to be shown to exist simultaneously:

(a) The Institution was established by the minority community, and

(b) It was being a run and managed by the Minority Community.

The Apex Court has repeatedly emphasized, after interpreting the language of Article 30 of the Constitution of India that both the establishment of the institution and its management and control must be shown to be by the Minority Community. If one of them is found to be lacking there can be no conferment of the minority status.

The Constitution Bench of the Apex Court in the case of St.Stephens College Vs. University of Delhi reported in (1992)1SCC 558 in paragraph 28 reads as follows:-

"28 ...........It should be borne in mind that the words "establish" and "administer" used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institution."

We may also record, that the learned counsel for the petitioner-appellant had emphasized before us that by means of the resolution dated 16.6.2012 a decision was taken to alter the name of the society as well as its aim and objects. Now the amended reads as Muslim Welfare Association and now restrictions have been placed in the matter of enrollment of new members and that all the members of the governing body are Muslims.

In our opinion, any change of memorandum of Association of bye-laws of the society after 64 years of the establishment of the institution has no legal consequence on the issue of establishment of the Society/Institution by persons belonging to different community i.e, not only by minority community. No such subsequent developments would dilute the finding of the writ Court that the Insitution had not been established by the Minority Insitution.

For the reasons recorded above and keeping in mind the findings returned by the writ Court in its judgment passed in Writ Petition No. 7827 of 1998 which stands affirmed with the dismissal of Special Appeal No. 401 of 1999 vide order 11.9.2012, the question of any fresh application being made by the Committee of Management/Institution Bara Inter College, Bara for declaration of minority status before the Commission cannot be legally sustained as it will have the effect of over reaching the judgment of the writ Court which has become finally between the parties. The direction issued in the judgment in appeal dated 11.9.2012 in that regard has to be set aside, it is ordered accordingly.

Once we reach the conclusion that the institution was not established by a Minority Community it could not have been granted any benefits applicable to minority institutions as envisaged under the Intermediate Education Act, and regulation framed thereunder. All appointments made treating the institution to be a minority institution must fall automatically. The order of the learned Single Judge warrants no interference in that respect.

Special Appeal (Defective) No. 84 of 2017 and Special Appeal (Defective) No.85 of 2017 are allowed to the extent indicated above. Special Appeal No. 82 of 2017, Special Appeal No. 83 of 2017, Special Appeal (Defective) No. 16 of 2017 and Special Appeal (Defective) No. 17 are dismissed.

Order Date :- 1.8.2017

Akbar