Ishan Education Research Society vs National Commission For Minority ...
2015 Latest Caselaw 4644 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                   Date of decision: 2nd July, 2015

+      W.P.(C) 4901/2013
       ISHAN EDUCATION RESEARCH SOCIETY ..... Petitioner
                        Through: Mr. Rajeshwar Kumar Gupta, Adv.

                               Versus

       NATIONAL COMMISSION FOR MINORITY EDUCATIONAL
       INSTITUTIONS & ORS.                     ..... Respondents

Through: Mr. Syed Abdul Haseeb, Adv. for NCMEI

AND + W.P.(C) 1250/2014 ISHAN EDUCATION RESEARCH SOCIETY ..... Petitioner Through: Mr. Rajeshwar Kumar Gupta, Adv.

                               Versus

       NATIONAL COMMISSION FOR MINORITY EDUCATIONAL
       INSTITUTIONS AND ORS                    ..... Respondents
                     Through: Mr. Syed Abdul Haseeb, Adv. for NCMEI

                                            AND
+      W.P.(C) 1992/2014

ISHAN EDUCATION RESERACH SOCIETY ..... Petitioner Through: Mr. Rajeshwar Kumar Gupta, Adv.

                               Versus

       NATIONAL COMMISSION FOR MINORITY EDUCATIONAL
       INSTITUTIONS & ANR.                     ..... Respondents
                     Through: Mr. Syed Abdul Haseeb, Adv. for NCMEI




                                             AND
+      W.P.(C) 9265/2014
       ISHAN EDUCATIONAL RESEARCH
       SOCIETY (REGD.) & ANR.                    ..... Petitioners
                        Through: Mr. Rajeshwar Kumar Gupta, Adv.

                               Versus

    NATIONAL COMMISSION FOR MINORITY EDUCATIONAL
    INSTITUTIONS & ANR.                     ..... Respondents
                  Through: Mr. Syed Abdul Haseeb, Adv. for NCMEI
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. W.P.(C) No.4901/2013 was filed seeking a declaration that the

institutions managed by the petitioner Ishan Education Research Society to

be Minority Educational Institutions within the meaning of Section 2(g) of

the National Commission for Minority Educational Institutions Act, 2004

(NCMEI Act). It was the plea of the petitioner therein, i) that it was

registered in the year 1994 as a Society under the Societies Registration Act,

1860 with the objective to establish, run and maintain educational

institutions; ii) that in the year 1995, the petitioner Society established an

educational institution in Greater Noida, Uttar Pradesh in the name of Ishan

Institute of Management and Technology for imparting Postgraduate

Diploma in Management and which course was approved by the All India

Council for Technical Education (AICTE); iii) that in the year 2006, the

petitioner Society applied to the Registrar for amendment in Bye-laws of the

Society to show the Status of The Society as a minority Society and the Bye-

laws of the petitioner Society were duly amended; iv) that on 15 th

September, 2010, the petitioner Society applied to the Government of Uttar

Pradesh for grant of minority status to Ishan Institute of Management &

Technology; v) that not receiving any response to the said application, the

petitioner Society approached the National Commission for Minority

Educational Institutions (NCMEI) established under the NCMEI Act; vi)

that it was the plea of the petitioner Society before the NCMEI that there

were eight founder members of the petitioner Society at the time of

establishment thereof and of which six were followers of Buddhist Religion,

a minority religion and the said members are continuing to follow the

Buddhist religion from inception of the petitioner Society and the majority

of the members of the petitioner Society belong to minority community; vii)

that the NCMEI after several hearings and verification, under its seal, issued

a letter dated 18th July, 2012 and a Certificate dated 4th June, 2012 declaring

the Ishan Institute of Management and Technology run by the petitioner

Society as a Minority Educational Institution; viii) that the petitioner Society

on 28th August, 2012 submitted two applications to the NCMEI for

according minority status to Ishan School, Greater Noida, and Ishan Institute

of Law also at Greater Noida, both established by the petitioner Society; ix)

that however NCMEI vide order dated 5th June, 2013 rejected the said

applications inter alia without considering that another institution

established by the petitioner Society had been accorded minority status.

Soon after filing of the aforesaid petition, an application for amendment

thereof was filed, to also impugn the order dated 5th June, 2013 of the

NCMEI and which was allowed.

2. The petitioner Society at about the same time also filed W.P.(C)

No.1250/2014, additionally pleading, i) that Mrs. Neetu Garg, Mr. Prem

Chand and Mr. Dharmendra Kumar being the founder members of the

petitioner Society converted to Buddhism from Hinduism after attending the

ceremony in the Sichin Buddhist Monastery, Bihar on 16 th April, 2003 and

Mr. Om Prakash Agarwal, Mrs. Usha Agarwal and Mr. Ved Prakash Garg

(the name of Mr. Ved Prakash Garg was not mentioned in the documents of

incorporation of the petitioner Society) converted to Buddhism on 2nd May,

2003; ii) that the said six members of the petitioner‟s Society thereafter

started to follow the Tibetan Mahayana School of Buddhism and daily repeat

and recite the three vows of Buddhist preaching thrice; iii) that thus, of the

eight members of the petitioner Society, six are followers of Buddhist

religion, a minority religion; iv) that on 30th September, 2012, the petitioner

Society approached NCMEI and sought minority status for another institute

run by the petitioner Society i.e. Ishan Institute of Architecture and Planning

at Greater Noida; v) that after filing of W.P.(C) No.4901/2013 (supra) by the

petitioner Society, the NCMEI vide order dated 19th December, 2013

cancelled the minority status of the petitioner Society. Accordingly, the

petition was filed impugning the said order dated 19th December, 2013.

3. Before notice of either of the aforesaid two petitions could be issued,

W.P.(C) No.1992/2014 was also filed inter alia with the same pleadings as

in the other two petitions and seeking a declaration of the institutions

managed by the petitioner Society to be minority educational institutions and

a direction to the NCMEI to declare the two institutions administered and

managed by the petitioner Society, as minority educational institutions.

4. The aforesaid three petitions were taken up together on 5th August,

2014 when notice thereof was issued. Counter affidavits have been filed by

the NCMEI. Though in each of the petitions, Minority Welfare Department

of Government of Uttar Pradesh has been impleaded as respondent No.3 but

does not even appear to have been served and neither has any reply been

filed on its behalf nor has anyone been appearing on its behalf before this

Court.

5. W.P.(C) No.9265/2014 has been filed impugning the order dated 12th

August, 2014 of the NCMEI by which the NCMEI refused minority status to

Lord Buddha Homeopathic College and Hospital, Greater Noida which is

the petitioner No.2 in the said petition and which appears to have also been

established by the petitioner Society and declaration of whose status as a

minority educational institution was also sought by the petitioner Society.

6. The petitioner Society has not filed any order of the NCMEI

containing the reasons for declaring the Ishan Institute of Management and

Technology to be a minority educational institution, save the Certificate

dated 4th June, 2012 (supra) issued in this respect and the letter dated 18 th

July, 2012 under cover of which the said certificate was forwarded by the

NCMEI to the petitioner society. It is thus not known as to what reasons

prevailed with the NCMEI for issuing the said certificate. The respondent

NCMEI however has produced a copy of the order dated 4th June, 2012 and

a reading whereof shows that the said certificate was issued on the basis of

"unrebutted evidence produced by the petitioner" of five out of its eight

members being Buddhist and on the principle that the identifying criteria for

determining the minority status cannot be by percentage.

7. However, the NCMEI subsequently has given the following reasons

for denying the minority status to the petitioner Society and the educational

institutions established by it and for revoking the minority status earlier

granted to Ishan Institute of Management and Technology:

(i) that the six out of the eight members of the petitioner Society

who were claimed to have converted to Buddhist religion, had

in support thereof produced certificates but which were only of

having attended Buddhist teachings and the said persons even

in their affidavits filed by them have nowhere stated that they

renounced Hindu religion before embracing Buddhist religion;

(ii) that the said certificates relied upon by the said persons were

not conclusive proof of renunciation of Hindu religion by the

said persons;

(iii) that a person who was admittedly a Hindu is presumed to

continue as such, unless renounces Hindu religion;

(iv) that in the absence of any proof of renunciation of Hindu

religion, it has but to be presumed that all the founding

members of the petitioner Society were Hindu by religion;

(v) that if the founding members of the petitioner Society want to

prove that they have renounced Hinduism and embraced

Buddhist religion, they must approach the Civil Court of

competent jurisdiction for such a declaration;

(vi) that from a very large number of applications claiming that the

promoters of educational institution had converted to minority

religion, it appeared that a big lobby was at work misusing the

minority status and the NCMEI cannot allow such blatant abuse

/ misuse of fundamental rights enshrined in Article 31 of the

Constitution of India;

(vii) that the petitioner Society had attempted to commit fraud on the

Constitution;

(viii) that the petitioner Society had obtained minority status

certificate from the NCMEI by suppressing material facts

relating to the religious status of its members;

(ix) that in order to have a declaration of minority status, it has to be

shown:

(a) that the educational institution was established by a

member / members of the religious minority community;

(b) that the educational institution was established primarily

for the benefit of that minority community; and,

(c) that the educational institution is being administered by

the minority community.

(x) that the certificates produced by the petitioner Society and its

members as proof of conversion of six of its members to

Buddhism only mentioned that the said persons had received

"diksha" and which was not proof of denouncement of Hindu

religion;

(xi) that one can adore Prophets / Saints of other religion or

inculcate their preaching but that by itself does not prove

renouncement of one‟s original religion and faith;

(xii) that the NCMEI does not have the mandate to declare the

religious status of the person and which can be done by a Civil

Court of competent jurisdiction only;

(xiii) that the petitioner Society had also not shown that the

beneficiaries of the educational institution set up by it are from

minority community;

(xiv) on the contrary, a bare reading of the aims and objectives of the

petitioner Society makes it clear that the approach of the

founding members of the petitioner Society was, to be secular

and the petitioner Society was not created with the objective of

providing any primary or special benefits for a specific /

particular religious community;

(xv) that merely because the members of a society may belong to a

particular shade of faith would not entitle them to administer

the educational institution with the said faith;

(xvi) that it has been held by the Supreme Court in T. Varghese

George Vs. Kora K. George (2012) 1 SCC 369 that

establishment and administration must be both by and for a

minority community and which is not the case of the petitioner

Society;

(xvii) that the Memorandum of Association of the petitioner Society

nowhere declares that the beneficiaries of the Society are

members of the Buddhist community;

(xviii) that there is no evidence that the institutions set up by the

petitioner Society have been established and are being

administered by a notified minority community and that the

beneficiaries of the petitioner institutions are members of

Buddhist community.

8. The respondents No.1&2 NCMEI in their counter affidavit have

reiterated the aforesaid reasoning and have additionally pleaded:

(a) that it is clear from the documents that the petitioner Society

was established in the year 1994 by members from the Hindu

community;

(b) the six members of the petitioner Society were claimed to have

embraced Buddhist religion only in the year 2003;

(c) that going by the said logic also, the educational institutions

established by the petitioner Society prior to 2003 were

established by petitioner Society members whereof were from

Hindu community; before an institution can be granted the

minority status, it has to be established as a matter of fact that

the institution has been established by the minority community;

(d) that the terms "establish and administer" as appearing in

Section 2(f) of the NCMEI Act have to be read conjunctively;

(e) that thus, even if it is to be believed that the members of the

petitioner Society have converted to Buddhism, it still cannot

be said that the educational institutions have been established

by a minority community;

(f) that a notified minority has the right to administer educational

institutions of their choice provided they have been established

by them but not otherwise; reliance in this regard is placed on

S. Azeez Basha Vs. Union of India AIR 1968 SC 662 and on

Dayanand Anglo Vedic (DAV) College Trust & Management

Society Vs. State of Maharashtra (2013) 4 SCC 14;

(g) that the institution has to be established as a minority

educational institution; the educational institutions of the

petitioner were admittedly not established as minority

educational institutions;

(h) that to claim minority status, the establishment and

administration of the institution must be by and for a minority,

which is also not the case here;

(g) that it has been held in S.P. Mittal Vs. Union of India AIR

(1983) 1 SCC 51 that if the institution has been established by

somebody else, a religious or linguistic minority even if

administering it, cannot claim to be a minority institution;

(h) that the Madras High Court in T.K.V.T.S.S. Medical

Educational & Charitable Trust Vs. State of Tamil Nadu AIR

2002 Madras 12 has held that a minority status can be cancelled

on the ground that the same was obtained by suppression of any

material fact;

(i) Section 12C of the NCMEI Act also expressly empowers the

NCMEI to cancel a minority certificate obtained by fraud and

suppression.

9. The counsel for the petitioner has referred to Punjab Rao Vs. D.P.

Meshram AIR 1965 SC 1179 laying down that if a public declaration is

made by a person that he has ceased to belong to his old religion and has

accepted another religion, he will be taken as professing the other religion;

that it is unnecessary to enquire further as to whether the conversion to

another religion was efficacious. (I may however notice that in the same

judgment, it is also mentioned that a declaration of one's belief must

necessarily mean a declaration in such a way that it would be known to those

whom it may interest. The newspaper declarations which are alleged to have

been made are in „Classified Columns‟ of newspapers which ordinarily

would not be noticed by anyone. The same is the position of the Gazette of

the Government of India. A declaration to the said effect should have been

shown to have been made to the relatives and friends in the social gatherings

and functions attended by the petitioner and which has not been done).

10. It was the contention of the counsel for the petitioner Society on 14 th

May, 2015 when these matters came up before this Court that there are

several instances where institutions run by Societies / Trusts have been

granted minority status based on the conversion of members of the Society /

Trust. This Court, vide order of the said date, observing that it appeared that

the NCMEI does not carry out any investigation as to the percentage of the

students from the minority community studying in the institution, NCMEI

was directed to file an affidavit indicating the nature of the investigation or

examination carried out by it to determine the minority status, the number of

institutions that have been granted minority status on the basis of conversion

of the members of the Society / Trust and the number of institutions which

had applied for being granted minority status prior to the Right of Children

to Free And Compulsory Education Act, 2009 (RTE Act) and thereafter and

the various aspects considered by it in granting or refusing the said status.

11. Though the NCMEI has not filed the affidavit as directed, but the

counsel for the petitioner Society proceeded to argue. It is argued that

though the NCMEI had earlier certified one of the institutions established by

the petitioner Society as a minority educational institution but has

subsequently revoked the said declaration and has also refused to grant the

minority educational status to the other educational institutions established

by the petitioner Society.

12. I have however enquired from the counsel for the petitioner Society

whether not the question, whether an educational institution is a minority

educational institution or not, is to be determined from the documents of the

establishment of the institution and not by filing of affidavits and making

pleadings etc. In this regard, it may be noticed that the NCMEI Act has

constituted the NCMEI with the power (Section 12B) to decide on the

minority status of an educational institution. Section 12F bars the

jurisdiction of Courts to entertain any suit, application or other proceeding in

respect of any order made under Chapter 4 of the NCMEI Act and which

includes Section 12B. Thus NCMEI has been vested with a final say on the

minority status of an educational institution.

13. The test of „minority‟, as prescribed in Section 2(g) of the NCMEI

Act is that the educational institution must have been established „and‟ must

be administered by a minority or minorities. „Minority‟ is defined in Section

2(f) as a community notified as such by the Central Government. The

counsel for the NCMEI on enquiry states that Buddhist have been notified as

a minority for the purpose of the Act.

14. It is not the contention of the counsel for the petitioner Society that

the words „established and administered‟ in Section 2(g) of the NCMEI Act

have to be applied disjunctively and not conjunctively. In this regard, it may

be noticed that Section 2(g) prior to its amendment with effect from 1st

September, 2010 defined „minority educational institution‟ inter alia as an

institution established or maintained by a person or group of persons from

amongst the minorities. The Legislature having intentionally substituted the

words "established or maintained" with the words "established and

administered" , it cannot possibly be argued that merely being established or

merely being administered by a minority, is sufficient to claim a minority

status. Notice in this regard may also be taken of Article 30(1) of the

Constitution of India, where also the words are "establish and administer".

The Supreme Court, as far back as in In Re: The Kerala Education Bill AIR

1958 SC 956 reiterated in S. Azeez Basha supra held that the said words

have to be read conjunctively. The same view has also been reiterated in

S.P. Mittal supra and in Dayanand Anglo Vedic (DAV) College Trust &

Management Society supra.

15. The Supreme Court, in S. Azeez Basha also held that the word

"establish" in Article 30(1) means "to bring into existence" and that the right

given by Article 30(1) to the minority, is to bring into existence an

educational institution, and if they do so, to administer it. In this view of the

matter, the Supreme Court proceeded to see what happened in the year 1920

and who brought the Aligarh Muslim University, with which the Supreme

Court was concerned in that case, into existence.

16. I have thus enquired from the counsel for the petitioner as to what was

the status of the petitioner Society when it set up the educational institutions.

17. The counsel for the petitioner Society has candidly admitted that at

that time, there was nothing in the Memorandum of Association of the

petitioner Society to show that it was a „minority‟ society though the

petitioner Society in the year 2006 amended the said Memorandum of

Association to describe its status as a „minority‟ society.

18. The NCMEI Act, 2004 was notified on 6th January, 2005. The

possibility of the petitioner Society, in the year 2006, amending its

Memorandum of Association to describe itself as a „minority‟ society with

the intent of having itself declared a minority educational institution to take

advantage of the freedom from a host of laws and regulations governing the

educational institutions, cannot be ruled out. Though the petitioner Society

claims its members to have converted to Buddhist religion in the year 2003,

however the said conversion also did not prompt the petitioner Society to

then amend its Memorandum of Association. The obvious conclusion is that

the amendment of the Memorandum of Association was guided by the

promulgation of the NCMEI Act, and not by the alleged conversion of

religion by its members.

19. It is also worth noticing that though the petitioner Society by the said

amendment of the year 2006 labelled itself as a „minority‟ Society, but

without making any substantial change otherwise in the Memorandum of

Association. The Aims and Objective of the petitioner Society still remain

secular, though a conflicting clause has been added that the main

beneficiaries of the Society shall be from Buddhist community. However

the petitioner Society has not even pleaded that the educational institutions

established by it, have reserved any number of seats for students from

Buddhist religion / community or in the matter of admission, give any

preference to those professing Buddhist religion. Rather, the Clause 1 of the

Aims and Objectives of the petitioner Society is, "to work for educational

development and upliftment of community irrespective of religion and in the

interest of mankind in general". The subsequent Clause 19 added by way of

amendment that "the main beneficiary of the Society shall be from Buddhist

Community and also the same can be extended to others" is clearly

inconsistent therewith and relying on the rule of interpretation of deeds that

in the event of inconsistency, the earlier clause prevails over the latter (See

Uma Devi Nambiar Vs. T.C. Sidhan (2004) 2 SCC 321, Satpal Yadav Vs.

M/s. Cambata Aviation Pvt. Ltd. MANU/DE/2024/2013 and Jyoti Ltd. Vs.

E.I.H. Ltd. MANU/DE/0795/2009) also, the Clause 1 has to prevail over

Clause 19.

20. Supreme Court, in A.P. Christians Medical Educational Society Vs.

Government of Andhra Pradesh (1986) 2 SCC 667, approved of in

Dayanand Anglo Vedic (DAV) College Trust & Management Society

supra, in nearly similar facts held the claim of being a minority institution to

be no more than a mere pretence and further held that to qualify as a

Minority Educational Institution, the institution should be of the minorities

in truth and reality and not a mere masked phantom. It was further held that

what is imperative is that there must exist some real positive index to enable

the institution to be identified as an Educational Institution of the Minorities.

Insertion of half a dozen words in the memorandum of the society to

proclaim it as a minority society was held to not suffice and to be a mere

smoke screen. It was yet further held that the Government, University and

the Courts have a right to pierce the minority veil and discover whether there

is lurking behind it no minority at all and in any case, no minority

institution.

21. Similarly, in T. Varghese George supra, the Supreme Court inspite of

the educational institution established by the Trust having been conferred the

status of Minority Educational Institution, on an interpretation of the

document creating the Trust and not finding therein any declaration by the

founder that the institution was to be a minority institution and further not

finding anything therein to exclude persons other than Christians from the

Management of the institution and also not finding any declaration by the

founder that the institution would be a minority institution, held the

character of the Trust as a Public Charitable Trust.

22. Applying the aforesaid principles, there is no error requiring

interference in exercise of power of judicial review in the order/s of the

NCMEI in so far as holding that there is nothing to show that the subject

educational institutions have been established by a person/s belonging to

minority community.

23. The petitioner, has not even attempted to show that the educational

institutions established by it are being administered by the minorities. No

management / administration structure of the said educational institutions

has been placed before the Court.

24. The counsel for the petitioner Society has also drawn attention to the

public notices stated to have been inserted in certain newspapers in

December, 2013 in the „Classified Columns‟ by some of its members of

having relinquished Hindu religion and having embraced the Buddhist

religion. Attention is also invited to such a declaration having been made in

the Gazette of India in 2014. However in my view, the said acts / actions

simply display the desperation of the said persons to acquire the minority

status for their educational institutions. They have not otherwise stated that

since the year 2003, they have in their dealings viz. in the matter of

marriages of their children or other ceremonies and functions not been

following the Hindu religion and have adhered to the tenets of Buddhist

religion. No other document where they may have declared themselves to

be professing Buddhist religion has been shown or put on record. Even

otherwise, as per the Rules and Regulations of the petitioner Society, the

membership is open to all with no requirement of the applicant professing

Buddhist religion. Similarly, ceasing to profess Buddhist religion is also not

made a ground for cessation of members. As per the said Rules and

Regulations, all the members have a right to seek election to the Managing

Committee / Governing Body of the petitioner Society and which it can

safely be presumed would administer the educational institutions established

by it. There is nothing else in the said Rules and Regulations to show that

the administration of the educational institutions is to be in the hands of only

such of the members of the petitioner Society who profess Buddhist religion.

Merely labelling a society as a minority society and which label is not even

required to be given under the provisions of the Societies Registration Act,

1860 would not make the society a society of the minority community, if the

aims and objectives and rules and regulations show otherwise.

25. Else, the NCMEI has given detailed reasons for its decision and no

fault therein has either been pointed out or is found by me.

26. The petitions are highly misconceived and have been filed and are

being pursued with ulterior motives and are dismissed with cumulative cost

of Rs.50,000/- payable to the NCMEI which has been forced to contest the

same. The costs be paid within a period of one month from today.

RAJIV SAHAI ENDLAW, J

JULY 02, 2015 „gsr‟..

(Corrected and released on 24th July, 2015).