CIRCUMSTANTIAL EVIDENCE = the standard of proof required for recording a conviction on the basis of circumstantial evidence and laid down the golden principles of standard of proof required in a case sought to be established on the basis of circumstantial evidence which are as follows: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra,(1973) 2 SCC 793 where the observations were made: [SCC para 19, p. 807) “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. .These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”= In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion that it was the appellants/accused who kidnapped and committed the murder of the deceased Kamlesh. We are satisfied that the trial Court has rightly accepted the prosecution case and awarded life sentence which was affirmed by the High Court. We fully concur with the said conclusion. Consequently, the appeals fail and the same are dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 26 OF 2008
Prakash .... Appellant(s)
Versus
State of Rajasthan .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 27 OF 2008
J U D G M E N T
P.Sathasivam,J.
1) These appeals are directed against the final judgment
and order dated 02.03.2006 passed by the High Court of
Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal
No. 154 of 2002, whereby the High Court dismissed the
appeal filed by the appellants herein and confirmed the
order dated 31.01.2002 passed by the Additional Sessions
1Page 2
Judge, Barmer, Rajasthan in Sessions Case No. 28 of 1998 by
which the appellants herein were convicted for the offence
punishable under Sections 302, 364 and 120-B of the Indian
Penal Code (in short “IPC”) and sentenced them to undergo
imprisonment for life under Section 302 and to pay a fine of
Rs.5000/- each.
2) Brief facts:
a) This is a case of kidnapping and murder of a 7 year old
child out of enmity. 
b) On 16.04.1998, Leeladhar (PW-1) lodged a report at
Police Station, Barmer stating that on 15.04.1998 his son
Kamlesh aged about 7 years left for the school in the
morning but did not return home till evening at 7.00 p.m. In
pursuance of the said report, the police made a search. On
19.04.1998, on an information by Hansraj (PW-8), Khet Singh
(PW-9) and Bheemaram (PW-11) that a dead body of a boy
was found lying on the hill of Sujeshwar in mutilated
condition, the police along with one Leeladhar (PW-1) went
to the spot. They found that some parts of the dead body
were eaten by the animals. From the clothes, shoes, socks
2Page 3
and school bag, PW-1 identified the dead body as that of his
son.
c) On 19.04.1998, another report of kidnapping and
murder was lodged by Leeladhar (PW-1) suspecting the
involvement of Ramesh S/o Dashrath, Prakash s/o
Gautamchand, Ramesh @ Papiya S/o Bhanwar Lal, Pannu,
Inder S/o Murlidhar, Ganesh and Pappu. After the
investigation and recovery, the police arrested Prakash,
Ramesh @ Papia and Ramesh Khatri on 22.04.1998 and a
charge sheet under Sections 302, 364 and 120-B of IPC was
filed against the accused persons.
d) By order dated 31.01.2002 in Sessions Case No.28 of
1998, the Additional Sessions Judge, Barmer convicted all
the three accused persons for the offences punishable under
Sections 302, 364 and 120-B of IPC and sentenced them
under Section 302, to undergo life imprisonment with a fine
of Rs.5000/- each, in default of payment of fine, further to
undergo rigorous imprisonment for one year, under Section
364, RI for 7 years with a fine of Rs.2000 each, in default of
payment of fine, further to undergo RI for 6 months and
3Page 4
under Section 120-B to undergo 7 years RI with a fine of
Rs.2000 each, in default of payment of fine, further to
undergo 6 months RI.
e) Challenging the order of conviction and sentence, the
appellants filed appeal being D.B. Criminal Appeal No. 154 of
2002 before the High Court. By order dated 02.03.2006, the
High Court dismissed the appeal filed by the appellants
herein.
f) Aggrieved by the said order, the appellants have
preferred these appeals by way of special leave.
3) Heard Mr. Seeraj Bagga, learned Amicus Curiae for the
appellants and Mr. Shovan Mishra, learned counsel for the
respondent-State.
Discussion:
4) In the case on hand, the prosecution case rests solely
on the basis of circumstantial evidence.
It was contended by
the learned amicus curiae for the appellants that in the
absence of direct evidence, the slightest of a discrepancy,
depicting the possibility of two views would exculpate the
accused of guilt, on the basis of benefit of doubt. Before
4Page 5
considering the materials placed by the prosecution and the
defence, let us analyse the legal position as declared by this
Court on the standard of proof required for recording a
conviction on the basis of circumstantial evidence. In a
leading decision of this Court in Sharad Birdhichand
Sarda vs. State of Maharashtra, (1984) 4 SCC 116,
this
Court elaborately considered 
the standard of proof required
for recording a conviction on the basis of circumstantial
evidence and laid down the golden principles of standard of
proof required in a case sought to be established on the
basis of circumstantial evidence which are as follows: 
“153. A close analysis of this decision would show
that the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned “must or should” and
not “may be” established. There is not only a
grammatical but a legal distinction between “may be
proved” and “must be or should be proved” as was
held by this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra,(1973) 2 SCC 793 where the
observations were made: [SCC para 19, p. 807):
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between ‘may be’
5Page 6
and ‘must be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence.”
5) Though learned counsel for the appellants referred
other decisions, since the above principles have been
followed in the subsequent decisions, we feel that there is no
need to deal with the same elaborately. With the above
“five golden principles”, let us consider the case of the
prosecution and find out whether it satisfies all the tests.
6) The relevant and material circumstances heavily relied
on by the prosecution are:
(i) The deceased was last seen in the company of the
appellants-accused.
6Page 7
(ii) Recovery of incriminating articles in pursuance of the
information given by the appellants.
(iii) Motive.
7) Learned amicus curiae for the appellants as well as
learned counsel for the respondent-State took us through
the entire evidence, both oral and documentary. We
scrutinized the same and also considered the respective
submissions made by them. Before proceeding further, it is
relevant to note that among these three accused, A-1 has
not challenged his conviction and sentence. The present
appeals are filed by A-2 and A-3, wherein we refer the
appellants which relates to A-2 and A-3 alone.
8) The first witness examined by the prosecution was
Leeladhar (PW-1) – father of the deceased. In his deposition,
PW-1 deposed that he is residing at Hathidhora, near Shiv
Temple, Barmer. He had two sons and one daughter. His
one son died prior to the incident. His eldest son was
Kamlesh, thereafter his daughter Khushbu and then
youngest son Narendra. He is doing the work of light fitting.
He usually goes to work at 8.30-9.00 in the morning and
7Page 8
returns back home at 8.00-8.30 in the night. Amongst his
three children, Kamlesh used to go to School. He studied in
Alesh Narayan Khatri School. On 15.04.1998, his son had
gone to school at 11.30 a.m. At that time, son of Peetamber
accompanied him. He further narrated that at 5.45 p.m.,
when he was working at the place of Cobblers, he received
the news that his son Kamlesh has not come back from the
school. On receipt of the said information, he went home
where his wife informed that Kamlesh has not come back
from the school. Thereafter, he went to the school and
enquired from the school teacher, who told that Kamlesh had
not come to school on that day. Thereafter, he enquired
from all his relatives at Barmer and searched for him but
could not locate him. Then he lodged a complaint with City
Police Station stating that his child is not traceable. Five
days thereafter at about 7 p.m. the police informed him that
they found a dead body. Thereafter, he along with Premji
Ghanshyamji went up to the hills. There is a mountain
behind the Shivji temple. He was taken up to that mountain
and Premji, Ghanshyamji and Moola had gone to the
8Page 9
mountain top where the dead body was lying. On seeing the
dead body, all the three came to C.I. Sahib and told that it
was the dead body of his son Kamlesh. During night, it was
not possible to lift the dead body, therefore, next morning he
again went to that place and collected the dead body of his
son tied in a cloth and brought the same to his home and
buried it. He also stated that the right hand of the dead
body was cut and the same was missing. The head of the
dead body was also missing. There was a white shirt with
black spots, black pant, black belt and black shoes put on
the dead body. There was also a school bag with the dead
body, which was of his son Kamlesh. The clothes worn on by
the dead body was also of his son.
9) He further narrated that on the second day after
missing of his son, suspicion rose on Pappu who had gone to
Delhi. He further explained that three months prior to the
incident, Ramesh Khatri had entered into the house of
Indramal Brahmin, whose house is adjacent to his house. In
this regard he made a complaint to the parents of the girl as
well as to the persons of the locality. The girl was of
9Page 10
Indramal. Then Ramesh put the poison packet in the house
of Indramal over the wall. Later on, the daughter of
Indramal died by consuming that poison. Thereafter,
Ramesh Khatri and Indramal Brahmin used to threaten him
that they would take revenge of it and would abduct his son
at the time of going to school. Three months after the said
threat, they committed the murder of his son after abducting
him when he was on the way to school. C.I. Sahib of police
had taken away the clothes in his presence and also
collected pant with black belt, a small blood smeared shit
with black spot design, two shoes and socks etc. He lodged
a report (Ex.P-01) with police station on the same day
stating that his child did not come back home from school.
He also informed the police that the dead body of his son
was found five days after his missing. After conducting
inquest, the police handed over the dead body of his son.
10) The next witness relied on by the prosecution is PW-7,
mother of the deceased. In her evidence, she deposed that
she had three children. The name of the third child was
Kamlesh. She narrated that about 14 months ago, she had
1
0Page 11
sent Kamlesh to school. On the relevant date, when she was
standing outside her house, the accused persons, namely,
Pappu, Ramesh and Prakash present in the court were
standing at the shop of Pappu. Amongst them, Pappu went
to his house and brought scooter and went on the scooter in
the same direction in which Kamlesh and Santosh had gone.
Thereafter, she went inside her home. At the relevant time,
her husband was doing the work of light fitting and he used
to go to work spot at 9 ‘O Clock in the morning return home
at 8 ‘O Clock in the evening. On the relevant date, when he
returned home, she informed him that their son Kamlesh had
not come back from the school. Thereafter, her husband
PW-1 went in search of Kamlesh along with her brother
Prem. She also narrated the incident about Ramesh that 12
months prior from the date of her missing of her son, at 11 O
clock, she had seen the accused Ramesh entering the house
of Indrammal which is close to her house. Ramesh had
relationship with the daughter of Indrammal, namely,
Pappuni. The said Ramesh used to enter their house even
during night. She informed the same to Indrammal’s wife.
1
1Page 12
She also disclosed this fact to other neighbours. According
to her, on coming to know of the said incident, Indrammal
and his sister beat her for which she had lodged a complaint
with the police due to which they threatened that they would
take revenge of it. One month after the said incident,
Pappuni died by consuming poison and, thereafter, the
accused Ramesh used to quarrel with her and many times
threatened her. She also reported the matter to the police.
With the assistance of the local people, the matter was
compromised with him. However, she complained that after
compromise, her son Kamlesh was missing and subsequently
murdered. She narrated the motive for killing of her son by
the accused persons. She also asserted that Pappu, Ramesh
and Prakash had made her son disappear and according to
her, they did it on account of the death of Pappuni and
thereafter, murdered her son.
11) Apart from the evidence of PWs 1 and 7 with regard to
the last seen theory, prosecution examined three persons,
namely, Moolchand (PW-3), Gautam Chand (PW-4) both are
goldsmiths and Biglaram (PW-10). In his evidence, PW-3 has
1
2Page 13
stated that he was known to Leeladhar, Ramesh and
Prakash. He further stated that on the date of the incident,
in the afternoon at about 12 he had seen all the accused
persons moving towards Panchpati Circle Road on a scooter.
He had also seen the son of Leeladhar sitting in between the
three accused persons on the scooter. Gautam Chand (PW-
4), who is also a goldsmith, in his evidence has stated that
on the date of the incident at about 12.15 he had seen the
accused moving in a scooter along with the small boy.
Though both PWs 3 and 4 did not identify the accused
persons in the identification parade, in view of their
assertion, we are satisfied that the prosecution has
succeeded in establishing the circumstance of last seen
theory.
12) The next witness relied on by the prosecution to
support the last seen theory is Bijlaram (PW-10). In his
evidence, he stated that on 15.04.1998, he had gone to
Sujesar Hillock for collecting firewood. While he was
returning on Gelu Road, he saw the accused along with a
boy moving towards the Hillock. The boy was wearing black
1
3Page 14
pant and white shirt and black shoes. He further narrated
that all the three accused and the child moved towards the
Hillock. He identified all the accused in the Court. He also
admitted that he was known to all the three accused persons
and the child. He was cross-examined at length but nothing
was elicited disproving his statement relied on by the
prosecution. The prosecution very much relied on by PWs 3,
4 and 10 to prove the last seen theory and the courts below
rightly accepted their version.
13) The analysis of the above evidence discussed so far
clearly show that the prosecution has succeeded in
establishing that the relations betweens the family of
Leeladhar and the appellants-accused were hostile. In fact,
Ramesh Khatri, one of the accused had threatened
Leeladhar and his wife of finishing their family. We are
satisfied that the prosecution has proved motive on the part
of the appellants for committing the murder of Kamlesh, son
of PWs 1 and 7.
14) It is true that counsel appearing for the appellant
pointed out the discrepancy in the evidence of PWs 11, 12,
1
4Page 15
16 and 21 about the condition of the dead body. 
It is
relevant to point out that these prosecution witnesses are
villagers and further the body was recovered only on
20.04.1998 whereas the incident occurred on 15.04.1998.
 In
fact, PWs 9 and 11 cattle grazers have deposed that the
dead body was partly eaten by dog. 
In view of the same,
merely because the prosecution witnesses were not
consistent in describing the dead body of 14 year old boy,
the entire prosecution case cannot be disbelieved. 
15) In the course of investigation and in pursuance of the
information given by A-1, pant and shirt stained with blood
of Ramesh were recovered from his house in the presence of
PWs 21 and 23. The pant and shirt were seized and sealed
in a packet marked as S-8. It is further seen that as per FSL
report, Exh.P-86, the presence of blood on the pant and shirt
are of human origin. 
16) In the light of the above discussion, we hold that the
prosecution has established all the circumstances by cogent
and acceptable evidence and if we consider all the
1
5Page 16
circumstances it leads to a conclusion that it was the
appellants/accused who kidnapped and committed the
murder of the deceased Kamlesh. 
We are satisfied that the
trial Court has rightly accepted the prosecution case and
awarded life sentence which was affirmed by the High Court.
We fully concur with the said conclusion. Consequently, the
appeals fail and the same are dismissed. 
………….…………………………J.
(P. SATHASIVAM)
 ………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
MARCH 22, 2013.
1
6Page 17

CONDONE THE DEALY OF 2500 DAYS =When the petitioner has taken the specific plea that summons were not served, the lower Court ought to have perused the record and rendered a finding based on the acknowledgment of the suit summons. The lower Court cannot be solely guided by the docket proceedings without verifying the record. The suit was filed for specific performance of an agreement of sale purported to have been executed by respondent No.2. In the said suit, the petitioner was set ex parte and an ex parte decree was passed on 03-09-1997. The petitioner has filed I.A.No.733 of 2004 under Section 5 of the Limitation Act, 1963 for condonation of delay of 2500 days in filing the petition to set aside the ex parte decree.

HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY

Civil Revision Petition No.797 of 2013

Date: 05.03.2013

 

Between:

K.L.Swamy

..... Petitioner

AND

 

Gopinati Venkatesulu, and another

 

.....Respondents

 

Counsel for the Petitioner: Sri G.Vasantha Rayudu

Counsel for Respondent No.1: Sri Mallu Vishnu Vardhan Reddy

The Court made the following:

ORDER:

         This civil revision petition arises out of order, dated 12-06-2008, in I.A.No.733 of 2004 in O.S.No.197 of 1996, on the file of the learned Principal Senior Civil Judge, Anantapur.

         Heard the learned counsel for the parties and perused the record. 

         The petitioner is defendant No.2 in O.S.No.197 of 1996 filed by respondent No.1.  Respondent No.2 is defendant No.1 in the said suit.  

The suit was filed for specific performance of an agreement of sale purported to have been executed by respondent No.2. In the said suit, the petitioner was set ex parte and an ex parte decree was passed on 03-09-1997.  

The petitioner has filed I.A.No.733 of 2004 under Section 5 of the Limitation Act, 1963 for condonation of delay of 2500 days in filing the petition to set aside the ex parte decree.  

This application was dismissed by the lower Court by the order under revision.

         A perusal of the order passed by the lower Court would show that it has disbelieved the version of the petitioner that suit summons were not served, only on the basis of the docket order dated 18-2-1997, in which it was recorded that summons were served on D-1 and D-2 by Post.  

The lower Court while observing that in the face of the docket order, the petitioner cannot be permitted to plead that summons were not served, and that the burden is on him to prove that summons were not served. 

         In my opinion, the entire approach of the lower Court suffers from lack of rationality and reasonableness. 

 When the petitioner has taken the specific plea that summons were not served, the lower Court ought to have perused the record and rendered a finding based on the acknowledgment of the suit summons.  

The lower Court cannot be solely guided by the docket proceedings without verifying the record.  

Moreover, by placing the burden on the petitioner to prove that suit summons were not served, it has committed a serious illegality.  

When a person pleads that summons were not served, the burden is on the opposite party to prove that the summons were served.  At any rate, having regard to the nature of the pleading, it is impossible for the person who raises such plea to prove in negative that summons were not served.

         For the above-mentioned reasons, the order of the Court below which borders on perversity cannot be sustained, and the same is accordingly set aside.  

The case is remitted to the lower Court for disposing of I.A.No.733 of 2004 afresh by verifying the record relating to service of summons by holding a fresh enquiry in the light of the observations made hereinbefore.

         The civil revision petition is accordingly allowed.

         As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.1084 of 2013 shall stand disposed of as infructuous.

__________________________

C.V.NAGARJUNA REDDY, J

Dt.05-03-2013

Mva/Vgb

Section 306 IPC- found not guilty of the offence punishable under Section 306 IPC and were, accordingly, acquitted of the said offences. The appeal against the first respondent-accused No.1 is abated as died.= What is abetment is defined under Section 107 of Indian Penal Code. To constitute the offence of abetment under Section 107 IPC., there must be an intentional aiding or conspiracy or instigation by the accused for doing of a thing. All the material witnesses turned hostile and did not support the case of the prosecution. As such, Ex.P-9-dying declaration of the deceased only remains on record. There cannot be any dispute that once the dying declaration is found to be true, correct and trustworthy and it is not an outcome of tutoring, the law is well settled that it can be acted upon. A conviction can be based solely on the dying declaration. A statement given by a person either verbal or written given by a person as to the cause of his death or any one of the circumstances resulting in his death, is admissible in evidence when the cause of death of such person comes in question, per Section 32 (1) of the Indian Evidence Act, 1872. In Ex.P-9-dying declaration the deceased stated one word that due to the harassment of A-3, she committed suicide. But, she did not state as to the nature of harassment of A-3. She survived for about one month after the incident.

CRLA 288 / 2013

CRLASR 12741 / 2008

PETITIONER RESPONDENT THE STATE OF A.P, REP BY THE PP   VS DUNNAPOTHULA SHANTHA (DIED) & 2 OTHERS PET.ADV. : PUBLIC PROSECUTOR RESP.ADV. :  SUBJECT: Other offences not covered above DISTRICT:  ADILABAD

HON'BLE SRI JUSTICE K.C.BHANU

 

Criminal Appeal (SR) No.12741 of 2008

 

JUDGMENT:

          This Criminal Appeal under Section 378 (3) and (1) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 18.01.2007, passed in S.C.No.37 of 2003 on the file of Assistant Sessions Judge, Asifabad, whereunder and whereby the respondents-accused were found not guilty of the offence punishable under Section 306 IPC and were, accordingly, acquitted of the said offences. The appeal against the first respondent-accused No.1 is abated as died.

2.       The brief facts of the case that are necessary for disposal of this Criminal Appeal may be stated as under: -

          A-3 is the husband of the deceased. On 12.03.2002 at about    11 am., while the deceased was alone in house, in the absence of   P.W-1 and A-3, she poured kerosene and set fire to herself. On seeing the same, one of the witnesses rushed to the spot and took her to the hospital of one Dr.Madhu. Thereafter, for better treatment, she was shifted to ESI Hospital, where she was admitted for more than one month and was later discharged. On 16.04.2002, she died due to the unhealed injuries. On receipt of the information from the hospital, the Police registered a case on the complaint of P.W-1, investigated into the same and filed the charge sheet.

3.       In order to substantiate the case, on behalf of the prosecution P.Ws.1 to 11 were examined and Exs.P-1 to P.10 were marked.  On behalf of the accused, neither oral nor documentary evidence was adduced.

4.       P.W-8-doctor who conducted autopsy on the dead body of the deceased opined that the deceased died as a result of septicemia due to secondary infection of the burn injuries. 

Therefore, the death of the deceased is unnatural. 

In that event,

the prosecution has to establish that due to the abetment of the accused, the deceased committed suicide. 

What is abetment is defined under Section 107 of Indian Penal Code. 

To constitute the offence of abetment under Section 107 IPC., 

there must be an intentional aiding or conspiracy or instigation by the accused for doing of a thing. 

All the material witnesses turned hostile and did not support the case of the prosecution. 

As such,      

Ex.P-9-dying declaration of the deceased only remains on record. 

There cannot be any dispute that once the dying declaration is found to be true, correct and trustworthy and it is not an outcome of tutoring, the law is well settled that it can be acted upon. A conviction can be based solely on the dying declaration. 

A statement given by a person either verbal or written given by a person as to the cause of his death or any one of the circumstances resulting in his death, is admissible in evidence when the cause of death of such person comes in question,  per Section 32 (1) of the Indian Evidence Act, 1872. 

In Ex.P-9-dying declaration the deceased stated one word that due to the harassment of A-3, she committed suicide. 

But, she did not state as to the nature of harassment of A-3. 

She survived for about one month after the incident. 

Because of lack of money the parents of the deceased could not take the deceased to a better hospital for further treatment. 

Therefore, it cannot be said that the death of the deceased was only due to the harassment of A-2 and A-3. 

In view of the aforesaid discussion, this Court does not find any grounds to set aside the impugned judgment.

5.       The Criminal Appeal is, accordingly, dismissed.

          Miscellaneous Petitions, if any, pending in this Criminal Appeal shall stand closed.

____________________

                                                JUSTICE K.C.BHANU

07^th December 2012

DR                                               

the linguistic minority status = Dayanand Anglo Vedic (DAV) College Trust and Management Society has challenged the order dated 24.2.2010 passed by a Division Bench of the Bombay High Court in Writ Petition No.1053 of 2010. By the said order, the Division Bench dismissed the writ petition and refused to interfere with the order dated 26.10.2009 passed by respondent No.2 (The Principal Secretary and Competent Authority, Minority Development Department, Government of Maharashtra) withdrawing the linguistic minority status of the appellant institution which was earlier granted by order dated 11.7.2008.= in order to claim minority/linguistic status for an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State; and, secondly, the right of administration of the said minority linguistic institution is also vested in those persons who are minority in such State. The right conferred by Article 30 of the Constitution cannot be interpreted as if irrespective of the persons who established the institution in the State for the benefit of persons who are minority, any person, be it non-minority in other place, can administer and run such institution. In our considered opinion, therefore, the order passed by the respondent-Authority and the impugned order passed by the Division Bench need no interference by this Court. We, therefore, do not find any merit in this appeal which is accordingly dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2678 OF 2013
(Arising out of SLP (C ) No.22430 of 2010)
Dayanand Anglo Vedic (DAV) College Trust
and Management Society
…..Appellant(s)
Versus
State of Maharashtra & Anr.
….Respondent(s)
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. The appellant – Dayanand Anglo Vedic (DAV) College Trust
and Management Society has challenged the order dated 24.2.2010
passed by a Division Bench of the Bombay High Court in Writ Petition
No.1053 of 2010. By the said order, the Division Bench dismissed the
writ petition and refused to interfere with the order dated 26.10.2009
passed by respondent No.2 (The Principal Secretary and Competent
Authority, Minority Development Department, Government of
Maharashtra) withdrawing the linguistic minority status of the
appellant institution which was earlier granted by order dated
11.7.2008.Page 2
3. The withdrawal of the recommendation for the appellantSociety as linguistic minority institution was on the ground that the
earlier order granting recommendation was under the mistake that
the trustees of the appellant were residing in the State of
Maharashtra.
4. The brief facts leading to this appeal are thus: The
appellant-Society was formed in the year 1885; and it was originally
got registered under the Societies’ Registration Act, 1860 at Lahore &
subsequently in the year 1948 in the State of Punjab. Since then, the
appellant is said to have established a large number of schools and
colleges all over India and is running such institutions all over the
country. The aims and objects of the appellant-Society as stated are
to establish educational institutions to encourage the study of Hindi,
classical Sanskrit and Vedas and also to provide instructions in English
and other languages, Arts, science including Medicine, Engineering
etc. The appellant’s further case is that the Society started
educational institutions at Solapur in the State of Maharashtra in 1940
and is having other schools and colleges at different places in the
State of Maharashtra. The persons speaking Hindi language and the
followers of Arya Samaj in the State of Maharashtra constituted less
than 50% of its total population. Therefore, being formed by the
persons belonging to Arya Samaj and speaking Hindi language, the
appellant-Society claimed to be a linguistic minority within the
2Page 3
meaning and purview of Article 30 of the Constitution of India. On
these facts, the appellant-Society stated that it was earlier granted
linguistic minority status in the State of Maharashtra by the Higher
and Technical Educational Department of the respondents for the
academic years 2004-05 and 2005-06. The said recognition was
granted after full appreciation of the documents and hearing of the
appellant. For the year 2006-07 also, the appellant-Society was
declared a linguistic minority after appreciation of documents.
However, in the year 2008, the Government of Maharashtra issued a
new Resolution dated 04.07.2008 laying down the procedure for
granting status of religious/linguistic minority to educational
institutions run by the minorities in the State of Maharashtra. On the
basis of said Resolution, the respondents issued a Certificate on
11.7.2008 recognizing the appellant-Society at Solapur as a linguistic
minority institution for the academic year 2008-09 also.
5. The problem started after the appellant-Society made an
application on 15.7.2008 requesting respondent No. 1 to issue
certificate of recognition in the name of appellant New Delhi instead of
Solapur. Instead of correcting the alleged mistake in the Certificate,
respondent No.2 passed an order dated 2.8.2008 cancelling the
Certificate dated 11.7.2008 issued to the appellant. The respondents
by the aforesaid order cancelled the recognition of the appellant as a
minority linguistic educational institution for the years 2004-05 and
3Page 4
2006-07 also. The main ground for cancellation of recognition of the
linguistic minority status of the appellant was that though the
appellant-Trust was registered under the Bombay Public Trust Act by
the Charity Commissioner, Mumbai, a majority of the trustees were
not residents of the State of Maharashtra and, therefore they cannot
be called a linguistic minority.
6. Challenging the aforesaid order of the respondents
cancelling the recognition, the appellant-Society moved the Bombay
High Court by filing Writ Petition No.284 of 2009, which was finally
disposed of with a direction to the respondents to pass a fresh order
after giving opportunity of hearing and considering all the documents
of the appellant. In compliance of that order, the appellant filed a
fresh application on 20.08.2009 together with all the necessary
documents requesting respondent No. 2 to restore the linguistic
minority status of the appellant. The said respondent, after hearing
the appellant-Society, finally rejected the application in terms of order
dated 26.10.2009 refusing to restore the earlier recognition of
linguistic minority status granted to the appellant. The appellantSociety then challenged the order dated 26.10.2009 by filing a writ
petition being Writ Petition No.1053 of 2010 before the Bombay High
Court. The said writ petition was finally heard and dismissed by the
Division Bench of the Bombay High Court by impugned order dated
4Page 5
24.2.2010. For better appreciation, the aforesaid order dated
24.2.2010 is reproduced hereinbelow:-
“The Petitioner-institution was given
initially recommendation as minority
institution. But because that
recommendation was given under a
mistake that the trustees of the Petitioner
reside in the State of Maharashtra. The
trustees of the Petitioner are claiming to be
belonging to linguistic minority because
they are Hindi speaking people. But all the
trustees of the Petitioner are residing in the
area where majority language is Hindi. The
authorities, therefore, have said that the
Petitioner-trust cannot claim to be an
institution belonging to linguistic minority in
the State of Maharashtra. The learned
counsel appearing for the Petitioner
submitted that as a certificate was granted
on 11.6.2008 (sic. 11.7.2008) it could not
have been withdrawn by the impugned
order.
The submission is not well founded.
Because it is the case of the Government
that certificate was issued under a mistake.
In our opinion, therefore, the State
Government had a right to correct that
mistake. What is further pertinent to note
is that the Petitioner itself returned the
certificate which had been granted to the
Petitioner.
Taking overall view of the matter,
therefore, as admittedly the trustees of the
petitioner do not reside in the State of
Maharashtra, where Hindi speaking people
are a linguistic minority, the petitioner trust
cannot claim to be a minority institution.
Petition is, therefore, rejected.”
5Page 6
7. By filing the instant appeal by special leave, the appellantSociety has challenged the aforesaid order passed by the Division
Bench refusing to interfere with the order dated 26.10.2009 passed by
the respondents, thereby withdrawing the linguistic minority status of
the appellant, which was earlier recognized by respondent No.2 by
order dated 11.7.2008.
8. Assailing the impugned orders, Mr. Ranjit Kumar, learned
senior counsel appearing for the appellant-Society firstly submitted
that the High Court failed to appreciate that the order impugned
dated 26.10.2009 passed by the respondents adopted a mechanical
procedure and in an arbitrary manner withdrew the recognition.
According to the learned senior counsel, the order of withdrawal of
recognition passed by the respondents is absolutely unconstitutional
and illegal, inasmuch as the appellant is an institution established in
the State of Maharashtra by the citizens speaking Hindi language and
as such it is a linguistic minority institution in the State of
Maharashtra. He submitted that the appellant is a linguistic minority
in the State of Maharashtra as Marathi is the language spoken by
majority of the people; and the place of residence of the trustees of
appellant-Society is irrelevant and immaterial qua the establishment
and administration of the educational institution by the appellantSociety in the State of Maharashtra. Learned counsel submitted that
6Page 7
the order of withdrawal is erroneous and contrary to the provisions of
Government Resolution dated 4.7.2008 which prescribes the
procedure for granting a minority status and recognition certificate.
He submitted that the Resolution nowhere prescribes that any
institution or trust claiming the linguistic minority status should have
such trustees who are residents of the said State. Learned senior
counsel, however, submitted that the pre-condition for grant of
minority status to an educational institution should be only that the
institution is of the persons whose mother-tongue is any Indian
language other than Marathi; and further, minimum 2/3rd trustees of
the Managing Committee of the Society/institution should be from the
concerned minority community. According to the learned counsel, the
appellant-Society fulfilled all the conditions specified in the
Government Resolution dated 4.7.2008 and as such the appellant is
eligible and qualified for grant of recognition as linguistic minority.
Learned senior counsel put heavy reliance on the decisions of this
Court in D.A.V. College Etc. Etc. vs. State of Punjab & Ors.
(1971) 2 SCC 269, T.M.A. Pai Foundation & Ors. vs. State of
Karnataka & Ors. (2002) 8 SCC 481 and Kanya Junior High
School, Bal Vidya Mandir, Etah, U.P. vs. U.P. Basic Shiksha
Parishad, Allahabad, U.P. & Ors. (2006) 11 SCC 92.
9. Finally, learned counsel submitted that the object of
running the institution is important and not the persons running the
7Page 8
institution. Article 30 of the Constitution protects the right of the
minority to establish and administer the minority/linguistic institution
in order to preserve the culture and language of the minorities.
10. The stand of the respondents as stated in the counter
affidavit is that the appellant-Trust does not fulfill the required criteria
for granting linguistic minority status in the State of Maharashtra.
The respondents’ case is that the appellant’s institution was
established in the State of Maharashtra by citizens residing outside
the State of Maharashtra and speaking Hindi language and as such
they are not a linguistic minority in the State of Maharashtra. The
respondents’ case is that in order to claim the protection by virtue of
being a minority community as guaranteed by the Constitution, the
obvious requirement should be that one must be a minority. It is
stated that there is no bar or restriction for running educational
institution in the State by the trusts which are registered outside the
State of Maharashtra, but these institutions are not treated as
minorities and they will definitely be subject to the Rules and
Regulations of the State which are applicable to non-minority
institutions.
11. Lastly, it is stated by the respondents that the
constitutional protection under Article 30 of the Constitution of India is
available only to those who are actually and physically in minority in
the State. The appellant is an institution established in the State of
8Page 9
Maharashtra by citizens residing outside the State of Maharashtra and
speaking Hindi language and as such they are not linguistic minority in
the State of Maharashtra. Hence, the status earlier granted by the
respondents to the appellant-Society has been rightly withdrawn,
especially when the appellant wanted such recognition in the name of
the Trust registered in New Delhi consisting of the trustees residing in
Delhi.
12. As noticed above, Mr. Ranjit Kumar has put heavy reliance
on T.M.A. Pai Foundation case (supra) in support of his contentions.
In that case, the 11-Judge Bench of this Court has settled many issues
related to Articles 29 and 30 of the Constitution of India. Their
Lordships held that Article 30(1) makes it clear that religious and
linguistic minorities have been put on par, insofar as that Article is
concerned. Therefore, whatever be the unit – whether a State or the
whole of India – for determining a linguistic minority, it would be the
same in relation to a religious minority. India is divided into different
linguistic States. The States have been carved out on the basis of the
language of the majority of persons of that region. For example,
Andhra Pradesh was established on the basis of the language of that
region viz. Telugu. “Linguistic minority” can, therefore, logically only
be in relation to a particular State. If the determination of “linguistic
minority” for the purpose of Article 30 is to be in relation to the whole
of India, then within the State of Andhra Pradesh, Telugu speaking
9Page 10
people will have to be regarded as a “linguistic minority”. This will
clearly be contrary to the concept of linguistic States. Their Lordships
further held that Article 30 gives the right to a linguistic or religious
minority of a State to establish and administer educational institutions
of their choice. It was observed that as a result of the insertion of
Entry 25 in List III, Parliament can now legislate in relation to
education, which was only a State subject previously. The jurisdiction
of Parliament is to make laws for the whole or a part of India. It is well
recognized that geographical classification is not violative of Article
14. It would, therefore, be possible that, with respect to a particular
State or group of States, Parliament may legislate in relation to
education. However, Article 30 gives the right to a linguistic or
religious minority of a State to establish and administer educational
institutions of their choice. The minority for the purpose of Article 30
cannot have different meanings depending upon as to who is
legislating. Language being the basis for the establishment of
different States, for the purpose of Article 30 a “linguistic minority”
will have to be determined in relation to the State in which the
educational institution is sought to be established. The position with
regard to the religious minority is similar, since both religious and
linguistic minorities have been put on par in Article 30.
13. In the instant appeal, the sole question that arises for
consideration is as to whether a member of a linguistic non-minority in
1Page 11
one State can establish a Trust or Society in another State and claim
minority status in that State. In T.M.A. Pai Foundation case, 11
questions were framed for being answered. One of those questions
being Question No.7 was the same as that in the instant case, namely,
whether the member of a linguistic non-minority in one State can
establish a trust or society in another State and claim minority status
in that State. Their Lordships held that this question need not be
answered by that Bench and it would be dealt with by a regular Bench.
14. In the case of P.A. Inamdar and Ors. vs. State of
Maharashtra & Ors. (2005) 6 SCC 537, a 7-Judge Bench of this Court
has elaborately discussed T.M.A. Pai Foundation case and has
clarified the issues further. For better appreciation, some of the
relevant paragraphs are quoted hereinunder:
“91. The right to establish an educational
institution, for charity or for profit, being an
occupation, is protected by Article 19(1)(g).
Notwithstanding the fact that the right of a
minority to establish and administer an
educational institution would be protected by
Article 19(1)(g) yet the founding fathers of the
Constitution felt the need of enacting Article 30.
The reasons are too obvious to require
elaboration. Article 30(1) is intended to instil
confidence in minorities against any executive or
legislative encroachment on their right to
establish and administer educational institution of
their choice. Article 30(1) though styled as a
right, is more in the nature of protection for
minorities. But for Article 30, an educational
institution, even though based on religion or
language, could have been controlled or
regulated by law enacted under clause (6) of
Article 19, and so, Article 30 was enacted as a
1Page 12
guarantee to the minorities that so far as the
religious or linguistic minorities are concerned,
educational institutions of their choice will enjoy
protection from such legislation. However, such
institutions cannot be discriminated against by
the State solely on account of their being minority
institutions. The minorities being numerically less
qua non-minorities, may not be able to protect
their religion or language and such cultural values
and their educational institutions will be
protected under Article 30, at the stage of lawmaking. However, merely because Article 30(1)
has been enacted, minority educational
institutions do not become immune from the
operation of regulatory measures because the
right to administer does not include the right to
maladminister. To what extent the State
regulation can go, is the issue. The real purpose
sought to be achieved by Article 30 is to give
minorities some additional protection. Once
aided, the autonomy conferred by the protection
of Article 30(1) on the minority educational
institution is diluted as provisions of Article 29(2)
will be attracted. Certain conditions in the nature
of regulations can legitimately accompany the
State aid.”
“95. The term “minority” is not defined in the
Constitution. Chief Justice Kirpal, speaking for the
majority in Pai Foundation took a clue from the
provisions of the States Reorganisation Act and
held that in view of India having been divided into
different linguistic States, carved out on the
basis of the language of the majority of persons
of that region, it is the State, and not the whole of
India, that shall have to be taken as the unit for
determining a linguistic minority vis-à-vis Article
30. Inasmuch as Article 30(1) places on par
religions and languages, he held that the minority
status, whether by reference to language or by
reference to religion, shall have to be determined
by treating the State as a unit. The principle
would remain the same whether it is a Central
legislation or a State legislation dealing with a
linguistic or religious minority. Khare,J. ( as His
Lordship then was), Quadri, J. and Variava and
1Page 13
Bhan, JJ. in their separate concurring opinions
agreed with Kirpal, C.J. According to Khare, J.,
take the population of any State as a unit, find
out its demography and calculate if the persons
speaking a particular language or following a
particular religion are less than 50% of the
population, then give them the status of
linguistic or religious minority. The population of
the entire country is irrelevant for the purpose of
determining such status. Quadri, J. opined that
the word “minority” literally means “a nondominant” group. Ruma Pal, J. defined the word
“minority” to mean “numerically less”. However,
she refused to take the State as a unit for the
purpose of determining minority status as, in her
opinion, the question of minority status must be
determined with reference to the country as a
whole. She assigned reasons for the purpose.
Needless to say, her opinion is a lone voice. Thus,
with the dictum of Pai Foundation it cannot be
doubted that a minority, whether linguistic or
religious, is determinable only by reference to the
demography of a State and not by taking into
consideration the population of the country as a
whole.
96. Such definition of minority resolves one
issue but gives rise to many a questions when it
comes to defining “minority educational
institution”. Whether a minority educational
institution, though established by a minority, can
cater to the needs of that minority only? Can
there be an enquiry to identify the person or
persons who have really established the
institution? Can a minority institution provide
cross-border or inter-State educational facilities
and yet retain the character of minority
educational institution?”
15. Their Lordships further observed referring the decision of
this Court in Kerala Educational Bill, 1957, In re., 1959 SCR 995,
as under:
1Page 14
“97. In Kerala Education Bill the scope and ambit
of the right conferred by Article 30(1) came up for
consideration. Article 30(1) does not require that
minorities based on religion should establish
educational institutions for teaching religion only
or that a linguistic minority should establish
educational institution for teaching its language
only. The object underlying Article 30(1) is to see
the desire of minorities being fulfilled that their
children should be brought up properly and
efficiently and acquire eligibility for higher
university education and go out in the world fully
equipped with such intellectual attainments as
will make them fit for entering public services,
educational institutions imparting higher
instructions including general secular education.
Thus, the twin objects sought to be achieved by
Article 30(1) in the interest of minorities are: (i) to
enable such minority to conserve its religion and
language, and (ii) to give a thorough, good,
general education to children belonging to such
minority. So long as the institution retains its
minority character by achieving and continuing to
achieve the above-said two objectives, the
institution would remain a minority institution.
98. The learned Judges in Kerala Education Bill
were posed with the issue projected by Article
29(2). What will happen if the institution was
receiving aid out of State funds? The apparent
conflict was resolved by the Judges employing a
beautiful expression. They said, Articles 29(2) and
30(1), read together, clearly contemplate a
minority institution with a “sprinkling of
outsiders” admitted in it. By admitting a member
of non-minority into the minority institution, it
does not shed its character and cease to be a
minority institution. The learned Judges went on
to observe that such “sprinkling” would enable
the distinct language, script and culture of a
minority being propagated amongst nonmembers of a particular minority community and
that would indeed better serve the object of
conserving the language, religion and culture of
that minority.”
1Page 15
Paras 101 and 102 are also worth to be quoted here which are as
under:
“In this background arises the complex
question of trans-border operation of Article
30(1). Pai Foundation has clearly ruled in favour
of the State (or a province) being the unit for the
purpose of deciding minority. By this declaration
of law, certain consequences follow. First, every
community in India becomes a minority because
in one or the other State of the country it will be
in minority - linguistic or religious. What would
happen if a minority belonging to a particular
State establishes an educational institution in that
State and administers it but for the benefit of
members belonging to that minority domiciled in
the neighbouring State where the community is in
majority? Would it not be a fraud on the
Constitution? In St. Stephen’s, (1992) 1 SCC 558,
Their Lordships had ruled that Article 30(1) is a
protective measure only for the benefit of
religious and linguistic minorities and “no ill-fit or
camouflaged institution should get away with the
constitutional protection” (SCC p.587 para 28).
The question need not detain us for long as it
stands answered in no uncertain terms in Pai
Foundation. Emphasising the need for preserving
its minority character so as to enjoy the privilege
of protection under Article 30(1), it is necessary
that the objective of establishing the institution
was not defeated.
 “ If so, such an institution is under an
obligation to admit the bulk of the students
fitting into the description of the minority
community. Therefore, the students of that
group residing in the State in which the
institution is located have to be necessarily
admitted in a large measure because they
constitute the linguistic minority group as
far as that State is concerned. In other
words, the predominance of linguistic
minority students hailing from the State in
which the minority educational institution is
established should be present. The
1Page 16
management bodies of such institution
cannot resort to the device of admitting the
linguistic students of the adjoining State in
which they are in a majority, under the
façade of the protection given under Article
30(1)”. (SCC p.585, para 153.)
The same principle applies to religious minority. If
any other view was to be taken, the very
objective of conferring the preferential right of
admission by harmoniously constructing Articles
30(1) and 29(2), may be distorted.
 It necessarily follows from the law laid
down in Pai Foundation that to establish a
minority institution the institution must primarily
cater to the requirements of that minority of that
State else its character of minority institution is
lost. However, to borrow the words of Chief
Justice S.R. Das in Kerala Education Bill a
“sprinkling” of that minority from the other State
on the same footing as a sprinkling of nonminority students, would be permissible and
would not deprive the institution of its essential
character of being a minority institution
determined by reference to that State as a unit.”
16. Mr. Ranjit Kumar, learned counsel submitted that in P.A.
Inamdar case (supra), the question that arose for consideration
before the 7-Judge Bench has been left untouched observing that the
said questions have been dealt with by the regular Bench.
17. The main grievance of the appellant-Society is that the
impugned order of withdrawal of recognition made by the State
authorities is erroneous and contrary to the provisions of Government
Resolution dated 4.7.2008 which prescribes the procedure for granting
minority status. The appellant-Society alleged to have fulfilled all the
1Page 17
conditions specified in the said Resolution dated 4.7.2008 and thereby
made itself eligible and qualified for grant of recognition as linguistic
minority. As noticed above, the resolution dated 4.7.2008 issued by
the Minority Development Department of the State of Maharashtra
lays down the conditions and procedure for the grant of certificate of
minority linguistic character of the institution. The relevant portion of
the Resolution reads as under:
“RESOLUTION: The issue of making existing
procedure easy for granting the recognition as
cadre as religious/linguistic minority societies
which are being conducted by the minorities was
under the consideration of the State Government
for some time. Accordingly, after consulting with
the experts in this field interested persons and
taking into consideration directions given by the
Hon’ble Supreme Court in this connection from
time to time after superseding the Central
Administration Department, Resolution No.MS-
2006/634/CR-63/2006/35, dt. 11.6.2007, the
Government of Maharashtra is prescribing terms
and conditions and procedure for providing
recognition of religious/societies
conducted/managed by the State as detailed
hereunder:-
(1) The Competent Authority for providing
recognition of minority cadre:
For providing recognition of religious
linguistic minority cadre to the educational
societies managed by minorities of the State,
State Government has declared by the
Principal Secretary/Secretary Minority
Development Department, Government of
Maharashtra as Competent Authority as per
Government Notification No. MES-2008/CR-
149/08/E-1: dt. 4.7.2008.
1Page 18
(2) Touchstones for the eligibility of the
recognition for religious linguistic minority:
(1) Those educational societies to whom
recognition has been granted prior to
11.6.2007 as per specific order or
letter or in accordance with General
Administration Department,
Government Resolution No.MES-
2006/634/CR-63/2006/35 dated
11.6.2007 as minority educational
institutions/societies; such educational
societies/institutions are not required
to submit application again for the
recognition of the minority cadre.
However, conditions prescribed at
para-5 hereunder will be applicable to
all such societies.
(2) It is necessary that applicant minority
institution/society should have been
registered under Societies Registration
Act, 1860 or Bombay Public Trusts Act,
1950 or other concerned statute. The
concerned minority society of the
institution should have mentioned in
its bye-laws of rules of which the
religious/linguistic minority
communities that society belong, it has
been established to protect that the
interest that minority community.
(3) Institution/society of all religions which
have been notified by the Central
Government/Maharashtra Government
will be eligible to submit the
application for obtaining the
recognition for their educational
institutions as religious minority
educational institution.
(4) Educational institution of such persons
whose mother tongue is other Indian
language than Marathi will be eligible
to submit the application for the
1Page 19
recognition of minority educational
society of education.
(5) It is necessary that minimum 2/3rd
trustees of the Management
Committee of the Applicant
Society/institution should be from
concerned minority community.”
(emphasis
given)
18. From a perusal of the relevant provisions of the Resolution
quoted hereinabove, it is manifest that one of the conditions, inter
alia, is that the educational institutions of such persons whose mother
tongue is other Indian language than Marathi will be eligible to submit
their application for recognition and that minimum 2/3rd trustees of the
Management Committee of the Society or institution should be from
concerned minority community. In other words, as per the Resolution,
2/3rd of the trustees of the Management Committee of the Society
should be from minority community.
19. On a perusal of the documents contained in the
paperbook, the following facts emerged:
(i) By communication dated 28.06.2006 issued
by the Urban Secretary, Higher and Technical
Education Department, Government of
Maharashtra, the Director, Higher Education,
Maharashtra State, Pune, was informed that on
1Page 20
the basis of the representation submitted by
Dayanand Institutions at Solapur for providing
minority cadre (Hindi linguistic), the Government
has granted minority cadre (Hindi linguistic) to
the higher colleges (degree colleges) managed by
the Dayanand Institutions, Solapur for two
educational years i.e. 2006-07 and 2007-2008.
(ii). In the application dated 6.7.2007 submitted
by the appellant for obtaining sanction of
religious/ linguistic minority, although in column
No.1 of the form of application, name of the
Society has been shown as Dayanand Anglo Vedic
(DAV) College Trust and Management Society,
New Delhi, but other required information has
been given in the manner hereinunder:-
Whether minimum 2/3rd
persons or
trustees/members of
Board of Directors who
are looking after the
business of the society
are from
minority/linguistic
group, if yes, their
numbers.
All Trustees/Members of
the Board of Directors of
the Society who are
looking after the
business of the society
are from Arya
Community and their
mother tongue is Hindi
2Page 21
20. It is, therefore, clear that the appellant has not correctly
furnished the required information, inasmuch as it was not said that
the Trustees/Members of the Board of Directors, who are looking after
the business of the Society, are non-minority. Obviously, the reason is
that the persons or trustees, who are managing the business of the
Society are non-minority i.e. residing in New Delhi and not in the State
of Maharashtra.
21. The Certificate of Recognition was granted for the year
from 2004-2008 in the name of appellant’s institution i.e. Educational
Trust and Management Society, Solapur. For better appreciation, the
last Certificate granted on 11.7.2008 for the academic year 2008-09 is
reproduced hereinbelow:-
 “GOVERNMENT OF MAHARASHTRA
Competent Authority and Principal
Secretary Minority Development
Department, Mantralaya, Mumbai-400032.
No.MES-2007/264/CR-145/2007/35/D-1 Date:11.7.2008
CERTIFICATE FOR THE RECOGNITION OF MINORITY
CADRE
Educational Trust and Management Society,
Solapur had submitted the Application on
9.7.2007 for obtaining certificate for the
reorganization of their society in the cadre as
Linguistic Minority Educational Institute. During
the hearing which was conducted of the said
Institute before me on 11.7.2008, on the basis of
2Page 22
submissions made by the Officials of the Institute,
I have satisfied that, the said Institute is being
established and conducted through persons from
Linguistic (Hindi) Minority or Group of persons,
declared by State Government as per touchstone
prescribed under Minority Development
Department, Government Resolution No.MES-
2008/CR133/2008/D-1 dated 4.7.2008. as a
result it is being declared that the said Institute
is Linguistic (Hindi) Minority Educational Institute.
This certificate will be valid only for the State
of Maharashtra. The Linguistic Minority Cadre
which has been granted to the said society will be
applicable to all educational benches conducted
by the Institution.
The Linguistic Minority Cadre which has been
granted to the above mentioned Educational
Institution will be legally valid from the academic
year 2008-2009. it will be binding to comply with
the touchstones and conditions constantly and
specifically which have been prescribed as per
Government Resolution No. MES-2008/CR-
133/2008/D-1 dated 4.7.2008.
Sd/-
(TF.Thekkekara)
Competent Authority Principal Secretary
Minority Development Department
Mantralaya,, Mumbai-400032.”
22. It was for the first time that the appellant by
letter/representation dated 15.7.2008 addressed to the Competent
Authority, Minority Development Department, Mumbai, stated that the
recognition certificate for linguistic minority has been issued in the
name of “Dayanand Anglo Vedic (DAV) College Trust and Management
Society, Solapur”. Therefore, a request was made in the said
2Page 23
representation that since the appellant-Society is based at New Delhi,
Certificate of Recognition may be issued in the name of “Dayanand
Anglo Vedic (DAV) College Trust and Management Society, New Delhi”
instead of Solapur. The said representation was rejected by the
respondents mainly on the ground that only those Hindi speaking
persons who are residing in Maharashtra, will be treated as minority
in Maharashtra. Admittedly, in the instant case, the appellantTrust/Society is registered at New Delhi and majority of the trustees
reside at New Delhi and, therefore, these persons cannot be treated
as minority in the State of Maharashtra and they cannot claim the
protection of linguistic minority in the State of Maharashtra. The
aforesaid order was impugned in the writ petition which ultimately
resulted in a direction to the respondents to pass a fresh order after
giving opportunity of hearing to the appellant.
23. In compliance of the said direction, the respondents
passed the impugned order dated 26.10.2009. The Authority, while
rejecting the application for the grant of minority status, recorded the
following reasons:
A) On scrutiny of papers, it was seen that
although the covering application cited the name
of the institution as “Dayanand Institutions
Solapur”, the trust deed was registered in the
name of “Dayanand Anglo Vedic College Trust
and Management Society” and the majority of the
trustees resided at New Delhi.
2Page 24
B) The certificate of registration submitted by
the Dayanand Institutions Solapur in the name of
`Dayanand Anglo Vedic College Trust and
Management Society’ issued by the Charity
Commissioner Mumbai and their application
dated 6.7.07 on the letterhead styled ‘Dayanand
Institutions Solapur’ led the Competent Authority
to believe that the trustees were located in
Maharashtra, when in fact they were not
residents of Maharashtra. It was on the basis of
these documents that the certificate of
recognition as a minority institution had been
issued on the 11th July, 2008. the application of
the so-called `Dayanand Institutions Solapur’ by
its letter dated 15.07.08 for a certificate of
recognition of linguistic minority status to the
‘Dayanand Anglo Vedic College Trust and
Management Society, New Delhi’ was rejected in
the light of the above facts.
C) It was noticed from the documents
submitted by the organization, that although the
trust had produced a deed of registration in the
name and style `Dayanand Anglo Vedic College
Trust and Management Society’, registered at
Mumbai by the Charity Commissioner, Greater
Mumbai, the organization was also registered
under the name and style `Dayanand Anglo
Vedic College Trust and Management Society’
under the Societies Registration Act, 1860 at
Lahore on 30.6.1948. it is seen from the copy of
the Schedule 1 of the list of trustees, issued by
the Charity Commissioner Mumbai on 7.3.08, that
of the 34 trustees of the `Dayanand Anglo Vedic
College Trust and Management Society’ recorded
with the Charity Commissioner Greater Mumbai,
25 of the trustees reside in New Delhi, 4 in
Haryana, 4 in Punjab and one at Ranchi. It is not
denied by the applicant trust that in the case of
both trusts viz. registered in 2003 under the
Mumbai Public Trust Act, 1950 and uner the
Societies Registration Act 1860 at Lahore in
30.6.1948, the majority of the trustees reside in
New Delhi and that the majority of them reside
outside Maharashtra.
2Page 25
D) There is no separate trust or society
registered in the name of the `Dayanand
Institutions Solapur’. This entity appears to exist
only on the letterhead by which an application
seeking minority status was submitted to the
Government on 6th July, 2007.
E) The representative of the Dayanand Anglo
Vedic College Trust And Management Society also
stated that the Dayanand Institutions Solapur
were working in Maharashtra for the poor
students in Maharashtra in the best traditions of
an academic institution wedded to the cause of
excellence in education. They also stated that
they could not recruit teachers with an excellent
academic qualification in order to make the
institution an excellent institution, as they were
hampered by the requirement of the reservation
of ST and other reservations. There were no
qualified excellent teachers available with an ST
background. Hence they desired to avoid this
requirement of reservations in recruitment of
teachers by having a minority status.
F) In regard to the other contentions of the
trust, it is clear that this application for a minority
status is being made by the `Dayanand Anglo
Vedic College Trust and Management Society’ of
Arya Samaj members only to avoid the
implementation of the reservations in favour of
Scheduled Castes and Scheduled Tribes and other
backward communities, while recruiting teachers
and staff in the school. This is against the
constitutional provisions for the welfare and
development of SCs and STs and cannot be
accepted.
24. As noticed above, the aforesaid order of the respondents
dated 26.10.2009 was challenged before the Bombay High Court in
W.P. No.1053 of 2010. Dismissing the said writ petition, the High
Court noticed the fact that though the appellant claimed linguistic
2Page 26
minority status, but all the trustees of the appellant-Society are
residing in the area where majority language is Hindi. The High Court
took the view that the State Government had a right to correct the
mistake if any certificate granting minority linguistic status is granted
contrary to law. The High Court was further of the view that as
admittedly the trustees of the appellant do not reside in the State of
Maharashtra, where Hindi speaking people are linguistic minority, the
appellant-Trust/Society cannot claim to be a minority institution.
25. We have no doubt that the view taken by the High Court is
justified. The rights conferred by Article 30 of the Constitution to the
minority are in two parts. The first part is the right to establish the
institution of minority’s choice and the second part relates to the right
to administration of such institution. The word establishment herein
means bringing into being of an institution and it must be by minority
community. The administration means management of the affairs of
the institution. Reference may be made to be the decision of this
Court in the case of State of Kerala Etc. vs. Mother Provincial
Etc. AIR 1970 SC 2079.
26. Similarly, in the case of S.P. Mittal Etc. vs. Union of
India and Others, AIR 1983 SC 1, this Court held that in order to
claim the benefit of Article 30, the community must firstly show and
prove that it is a religious or linguistic minority; and secondly, that the
institution has been established by such linguistic minority.
2Page 27
27. In the case of A.P. Christians Medical Educational
Society vs. Government of Andhra Pradesh & Anr. AIR 1986 SC
1490 (para 8), this Court elaborately discussed the rights guaranteed
under Article 30 and held as under:-
“It was seriously contended before us that any
minority, even a single individual belonging to a
minority, could found a minority institution and
had the right so to do under the Constitution and
neither the Government nor the University could
deny the society’s right to establish a minority
institution, at the very threshold as it were,
howsoever they may impose regulatory measures
in the interests of uniformity, efficiency and
excellence of education. The fallacy of the
argument in so far as the instant case is
concerned lies in thinking that neither the
Government nor the University has the right to go
behind the claim that the institution is a minority
institution and to investigate and satisfy itself
whether the claim is well founded or ill-founded.
The Government, the University and ultimately
the court have the undoubted right to pierce the
`minority veil’ with due apologies to the
Corporate Lawyers and discover whether there is
lurking behind it no minority at all and in any
case, no minority institution. The object of Art.
30(1) is not to allow bogies to be raised by
pretenders but to give the minorities `a sense of
security and a feeling of confidence’ not merely
by guaranteeing the right to profess, practise and
propagate religion to religious minorities and the
right to conserve their language, script and
culture to linguistic minorities, but also to enable
all minorities, religious or linguistic, to establish
and administer educational institutions of their
choice. These institutions must be educational
institutions of the minorities in truth and reality
and not mere masked phantoms. They may be
institutions intended to give the children of the
minorities the best general and professional
education, to make them complete men and
women of the country and to enable them to go
2Page 28
out into the world fully prepared and equipped.
They may be institutions where special provision
is made to the advantage and for the
advancement of the minority children. They may
be institutions where the parents of the children
of the minority community may expect that
education in accordance with the basic tenets of
their religion would be imparted by or under the
guidance of teachers, learned and steeped in the
faith. They may be institutions where the parents
expect their children to grow in a pervasive
atmosphere which is in harmony with their
religion or conducive to the pursuit of it. What is
important and 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. We have already said
that in the present case apart from the half a
dozen words `as a Christian minorities institution’
occurring in one of the objects recited in the
memorandum of association, there is nothing
whatever, in the memorandum or the articles of
association or in the actions of the society to
indicate that the institution was intended to be a
minority educational institution. As already found
by us these half a dozen words were introduced
merely to found a claim on Art. 30(1). They were
a smoke-screen.”
28. In the case of S. Azeez Basha & Anr. Etc. vs. The Union
of India Etc. AIR 1968 SC 662 (para 19), this Court considered the
constitutional provisions and held as under:
“Under Article 30(1), "all minorities whether
based on religion or language shall have the right
to establish and administer educational
institutions of their choice". We shall proceed on
the assumption in the present petitions that
Muslims are a minority based on religion. What
then is the scope of Article 30(1) and what
exactly is the right conferred therein on the
2Page 29
religious minorities? It is to our mind quite clear
that Article 30(1) postulates that the religious
community will have the right to establish and
administer educational institutions of their choice
meaning thereby that where a religious minority
establishes an educational institution, it will have
the right to administer that. An argument has
been raised to the effect that even though the
religious minority may not have established the
educational institution, it will have the right to
administer it, if by some process it had been
administering the same before the Constitution
came into force. We are not prepared to accept
this argument. The Article in our opinion clearly
shows that the minority will have the right to
administer educational institutions of their choice
provided they have established them, but not
otherwise. The Article cannot be read to mean
that even if the educational institution has been
established by somebody else, any religious
minority would have the right to administer it
because, for some reason or other, it might have
been administering it before the Constitution
came into force. The words "establish and
administer" in the Article must be read
conjunctively and so read it gives the right to the
minority to administer an educational institution
provided it has been established by it. In this
connection our attention was drawn to In re: The
Kerala Education Bill, 1957, 1959 SCR 995: (AIR
1950 SC 956) where, it is argued, this Court had
held that the minority can administer an
educational institution even though it might not
have established it. In that case an argument was
raised that under Article 30(1) protection was
given only to educational institutions established
after the Constitution came into force. That
argument was turned down by this Court for the
obvious reason that if that interpretation was
given to Article 30(1) it would be robbed of much
of its content. But that case in our opinion did not
lay down that the words "establish and
administer" in Article 30(1) should be read
disjunctively, so that though a minority might not
have established an educational institution it had
the right to administer it. It is true that at p. 1062
2Page 30
of SCR; (at p. 992 of AIR) the Court spoke of
Article 30(1) giving two rights to a minority i.e. (i)
to establish and (ii) to administer. But that was
said only in the context of meeting the argument
that educational institutions established by
minorities before the Constitution came into force
did not have the protection of Article 30(1). We
are of opinion that nothing in that case justifies
the contention raised on behalf of the petitioners
that the minorities would have the right to
administer an educational institution even though
the institution may not have been established by
them. The two words in Article 30(1) must be
read together and so read the Article gives the
right to the minority to administer institutions
established by it. If the educational institution
has not been established by a minority it cannot
claim the right to administer it under Article
30(1). We have therefore to consider whether the
Aligarh University was established by the Muslim
minority; and if it was so established, the minority
would certainly have the right to administer it”.
(emphasis supplied)
29. In view of the opinion expressed by this Court in a catena
of decisions, there cannot be any controversy that minorities in India
have a right to establish and administer educational institutions of
their choice and the State Government or the Universities cannot
interfere with the day-to-day management of such institutions by the
members of minority community. At the same time, this Court
pointed out that though Article 30 itself does not lay down any
limitation upon the right of a minority to administer its educational
institution but this right is not absolute. This is subject to reasonable
regulations for the benefit of the institution. The State Government
3Page 31
and Universities can issue directions from time to time for the
maintenance of the standard and excellence of such institution which
is necessary in the national interest.
30. So far as the Government Resolution dated 4.7.2008 is
concerned, it prescribes a procedure for granting minority status. The
Resolution, inter alia, permits the persons of the State of Maharashtra
whose mother tongue is other Indian language than Marathi will be
eligible to submit an application for recognition of their linguistic
minority educational institution. The only rider put is that the
minimum 2/3rd trustees of the Management Committee of the
Society/Institution should be from the concerned minority community.
31. After giving our anxious consideration in the matter and in
the light of the law settled by this Court, we have no hesitation in
holding that 
in order to claim minority/linguistic status for an
institution in any State, the authorities must be satisfied 
firstly that
the institution has been established by the persons who are minority
in such State; and, 
secondly, the right of administration of the said
minority linguistic institution is also vested in those persons who are
minority in such State. 
The right conferred by Article 30 of the
Constitution cannot be interpreted as if irrespective of the persons
who established the institution in the State for the benefit of persons
who are minority, any person, be it non-minority in other place, can
administer and run such institution. 
In our considered opinion,
3Page 32
therefore, the order passed by the respondent-Authority and the
impugned order passed by the Division Bench need no interference by
this Court. We, therefore, do not find any merit in this appeal which is
accordingly dismissed.
…………………………………..J.
(SURINDER SINGH NIJJAR )
……………………………………J.
( M.Y. EQBAL )
New Delhi
March 22, 2013.
3Page 33