http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: RT.  REV.  BISHOP S. K. PATRO & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 02/04/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HIDAYATULLAH, M. (CJ) RAMASWAMI, V. MITTER, G.K. GROVER, A.N.

CITATION:  1970 AIR  259            1970 SCR  (1) 172  1969 SCC  (1) 863  CITATOR INFO :  D          1974 SC1389  (25,84,101,102,121,182,220)  RF         1975 SC1821  (23,38,40)

ACT: Constitution   of   India,  Arts.  29   and   30-Educational institution founded at Bhagalpur by Christians in 1854  with help  of  funds  received from  Landon  Missionary  Society- Institution claiming benefit of Art. 30 when asked by  State Educational  Authorities  to constitute its  managing   com- mittee according to their directions-For claiming benefit of Article  whether- an institution founded before adoption  of Constitution has to prove that it was established by members of  minority  who  were  residents  or  citizens  of  India- Difference between Arts. 29 and 30.

HEADNOTE: The  Government of the State of Bihar framed  certain  rules under  the  Bihar  High School (Control  and  Regulation  of Administration)  Act 13 of 1960.  Rule 41 provided that  the said  rules  will  not  apply  to  schools  established  and administered by minorities whether based on religion or lan- guage.  A school founded in 1854 at Bhagalpur and managed by the  National  Christian Council of India was asked  by  the Bihar  Government Educational authorities to constitute  its managing committee according to the directions given in  the order of the Secretary to the Government dated May 22, 1967. This  order was challenged before the High Court in  a  writ petition.   The  High  Court  dismissed  the  writ  petition holding that -though the institution was administered by the Christian minority ill India it had been established by  the Church  Missionary  Society  of London,  and  therefore  not having  been established by members of a minority  who  were residents  of India or citizens of India it could not  claim the  benefit of Art. 30 - Against he High  Court’s  judgment appeals  were filed in this Court and _petitions under  Art. 32 were also filed by persons interested. HELD:(i)  There  was ample evidence  on  record,  which showed  that  although assistance was  undoubtedly  obtained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

from  other bodies including the Church  Missionary  Society London, the school was set up by the Christian  Missionaries and  the local residents of Bhagalpur with the aid of  funds part of which were contributed by them. [178 F] (ii) The Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur formed a minority community.  It is true that the minority competent to  claim the,  protection  of  Art. 30(1) and  on  that  account  the privilege   of  establishing  and  maintaining   educational institutions  of  its choice must be a minority  of  persons residing  in  India. it does not confer  on  foreigners  not residing   in  India  the  right  to  set   up   educational institutions   of   their  choice.    Persons   setting   up educational institutions must be resident in India and  they must form a well defined religious and linguistic  minority. It  is however not predicated that protection of  the  right guaranteed under Art. 30 may be availed of only, in  respect of  an institution established before the  Constitution,  by persons born and resident in British India. [179 D] Therefore  the  fact that the funds were obtained  from  the United  Kingdom for assisting in setting up  and  developing the  School  or that the management of the  institution  was carried  on  by some persons who may not have been  born  in India  was not a ground for denying the, protection of  Art. 30(1). [180 C-D]                             173 (iii).  The  High Court was also wrong in holding  that  for claiming the benefit of Art. 30(1) all persons or a majority of  them  who established the institution  should  have-been "Indian  Citizens" in the year 1854.  There being no  Indian citizen-ship in the year 1854 independently of the  citizen- ship  of  the  British  Empire,,  to  incorporate  in   the, interpretation  of  Art.  30 in respect  of  an  institution established  by  a minority the condition that  it  must  in addition  be proved to have been established by persons  who would  if  the  institution  had  been  set  up  after   the Constitution have claimed Indian citizenship, is to  whittle down the protection of Art. 30 in a manner not warranted  by the provisions of the Constitution.  [180 E-F] The  protection of the rights under Art. 29 may  be  claimed only by Indian citizens.  Article 30 guarantees the right of minorities   to   establish   and   administer   educational institutions  :  the  article does not  expressly  refer  to citizenship  as  a  qualification for  the  members  of  the minorities. [179 F-G] (iv) On   the  above  findings  the  order  passed  by   the Educational  authorities  requiring  the  Secretary  of  the School  to take steps to constitute a managing committee  in accordance  with  the  order  dated May  22,  1967  must  be declared invalid. [180-G] In  re : The Kerala Education Bill, 1957 [1959] S.C.R.  995, Rev.   Father W. Proost & Ors. v. The State of Bihar &  Ors. [1969]  2  S.C.R. 73 and Rev.  Sidhajbhal Sabhai &  Ors.  v. State of Bombay & Anr. [1963] 3 S.C.R. 837, applied.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2346  of 1968. Appeal from the judgment and order dated September 10,  1968 of the Patna High Court in Civil Writ Jurisdiction Case  No. 503 of 1967 -and Writ Petitions Nos. 430 and 431 of 1968. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

M.   C.  Setalvad and R. Gopalakrishnan for  the  appellants (in C.A. go. 2346 of 1968). R.   Gopalakrishnan,  for the petitioners (in W.P. Nos.  430 and 431 of 1968). D.   Goburdhun,  for  the respondents (in C.A. No.  2346  of 1968). B.   P.  Jha for the respondents (in W.Ps. Nos. 430 and  431 of 1968). The Judgment of the Court was delivered by Shah,  J. A primary school started in 1854 at Bhagalpur  was later converted into a Higher Secondary School. The Legislature of the State of Bihar enacted the Bihar High Schools (Control and Regulation of Administration) Act 13 of 1960 which by s. 8 invested the State Government with  power to frame rules.  Section 8(1) provides 174 "The  State Government may, after previous  publication  and subject to the provisions of articles 29, 30 and 337 of  the Constitution of India, make rules not inconsistent with this Act for carrying out the purposes of this Act." In 1964 rules were framed under the Act by the State Govern- ment of Bihar.  Rule 41 provides: "These rules shall not apply to the schools established  and administered by the minorities whether based on religion  or language." By order dated September 4, 1963, the President of the Board of  Secondary  Education  approved the  election  of  Bishop Parmar  as  President and Rev.  Chest as  Secretary  of  the Church  Missionary  Society Higher Secondary  School.   This order  was  set aside by the Secretary  to  the  Government, Education Department, by order dated May 22, 1967.  On  June 21,  1967,  the  Regional  Deputy  Director  of   Education, Bhagalpur,  addressed  a  letter to  the  Secretary,  Church Missionary   Society   School,,  Bhagalpur,   inviting   his attention to the order dated May 22, 1967, and requested him to  take  steps to constitute a Managing  Committee  of  the School "in accordance with that order". A petition was then filed in the High Court of Patna by four petitioners (who are appellants in Appeal No. 2346 of  1968) for a writ quashing the order dated May 22, 1967, and for an order  restraining  the respondents-the State of  Bihar  the Secretary   to  the  Government  of  Bihar,  Government   of Education and the educational authorities of the  State-from interfering  with the, right of the petitioners to  control, administer  and manage the affairs of the School.  The  High Court of Patna dismissed the petition.  The High Court  held that the primary School at Bhagalpur was established by  the Church  Missionary  Society of London; that the  School  had developed into the present Church Missionary Society  Higher Secondary  School; and that the school was  administered  in recent  times  by  the  Church  Missionary-Society  of   the Bhagalpur  Diocese; and that the School not being an  educa- tion  institution established by a minority, protection  was not  afforded  thereto  by  Art.  30  of  the  Constitution. Against the order dismissing the petition, Civil Appeal  No. 2346 of 1968 has been filed in this Court. Two other petitions are filed in this Court claiming  relief on the footing that by the order dated May 22, 1967, of  the Government  of Bihar the fundamental right of the  Christian minority  to  maintain  an educational  institution  of  its choice  and  guaranteed by Art. 30(1)  is  infringed.   Writ Petition No. 430 of 1968                             175 is filed by the Principal, Church Missionary Society  Higher Secondary School, Bhagalpur, the Secretary, Bihar  Christian

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

Council,  Gaya, the Secretary, Santhalia Christian  Council, Bhagalpur,  and the Secretary National Christian Council  of India, Nagpur.  Writ Petition No. 431 of 1968 has been filed by  Rev.   M. P. Hembrom, Parish Priest,  Church  Missionary Society, Bhagalpur, two of whose children are being educated at the School.  These petitions are heard with Civil  Appeal No. 2346 of 1968. The High Court found on a consideration of the evidence that the  Church Missionary Society Higher Secondary School is  a "denominational  institution", that "scripture  classes  are held  in the School and lessons on the life and teaching  of Lord  Jesus Christ are taught" and examinations are held  in the subject for all students, that every morning, before the classes begin, the prayers from the prescribed Church  Books are  offered by the students and the members of  the  staff, and  each meeting of the Managing Committee of  the  Schools begins  and  closes with prayers from the  "Book  of  Common Prayer".   Correctness of the finding recorded by  the  High Court is not challenged before us.  The finding recorded  by the  High  Court that the School originally started  in  the year  1854 as a primary school had since developed into  the present Church Missionary Society Higher Secondary School is also not challenged before us. The  only question which falls to be determined  is  whether the petitioners in the two writ petitions and the appellants in  appeal  No.  2346  of 1968 are  entitled  to  claim  the protection-of Art. 30 of the Constitution on the ground that the  Church  Missionary Society Higher Secondary  School  at Bhagalpur  is  an educational institution  of  their  choice established by a minority. Article 30 of the Constitution by Cl. (1) provides               "All  minorities whether based on religion  or               language,  shall have the right  to  establish               and  administer  educational  institutions  of               their choice." The guarantee of protection under Art. 30 is not  restricted to   educational   institutions   established   after    the Constitution  :  institutions  which  had  been  established before the Constitution and continued to be administered  by minorities either based on religion or language qualify  for the  protection of the right of minorities declared by  Art. 30  of  the Constitution.  In In Re.  The  Kerala  Education Bill, 1957(1) Das, C.J., observed at p. 1051               "There  is no reason why the benefit  of  Art.               30(1)  should be limited only  to  educational               institutions     established     after     the               commencement of the Constitution.  The               (1)[1959] S.C.R. 995.               176               language employed in Art. 30(1) is wide enough               to  cover  both  pre-Constitution  and   post-               Constitution  institutions.   It must  not  be               ’overlooked   that   Art.  30(1)   gives   the               minorities   two   rights,  namely,   (a)   to               establish, and (b) to administer,  educational               institutions  of  their  choice.   The  second               right clearly covers pre-Constitution  schools               just  as Art. 26 covers the right to  maintain               pre-Constitution religious institutions." It was the case of the State and the parties intervening  in the writ petition before the High Court that the School  was established by the Church Missionary Society, London,  which they  claimed was a Corporation with an alien  domicile  and "such  a  Society was not a minority based  on  religion  or language"   within   the   meaning  of  Art.   30   of   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

Constitution., On behalf of the appellants in the appeal and the  petitioners  in the two writ petitions  filed  in  this Court  it is claimed that the School was started in 1854  by the  local Christian residents of Bhagalpur.   They  concede that  the  Church Missionary Society of  London  did  extend financial  aid in the establishment of the School, but  they contend that on that account, the School did not cease to be an  educational  institution  established  by  -a  religious minority in India. There  is on the record important evidence about  establish- ment  in 1854 of the Lower Primary School at Bhagalpur.   It is unfortunate that sufficient attention was not directed to that  part of the evidence in the High Court.   The  "Record Book"  of  the Church Missionary  Association  at  Bhagalpur which  is  Annexure  ’D’ to Writ Petition No.  430  of  1968 furnishes  evidence of vital importance having a bearing  on the  establishment  of the School.  It  contains  copies  of letters written from Bhagalpur and minutes of meetings  held and   the  resolutions  passed  by  the  Local  Council   of Bhagalpur.   On June 1, 1948, Rev.  Vaux informed  the  Cal- cutta  Corresponding  Committee  of  the  Church  Missionary Society  by  a letter that if the Calcutta Society  were  to establish  a School at Champanagar, "local assistance  shall not be wanting to the extent of 1000 or 1200 rupees a  year, besides  providing  a  school house and  residence  for  the master",  and  that "At first, for breaking  up  the  fallow ground  and  setting the school a going the  presence  of  a Missionary  of  tact and experience may be  necessary".   On June  26,  1948, Rev.  Vaux by another letter  informed  the Calcutta Corresponding Committee that a special service  was held in the Church on June 22, 1848 and thereafter on Friday June  23, 1848, a meeting was held and.  contributions  were invited  from  persons present including  Indian  residents, -that  monthly subscriptions of Rs. 202 for the  "salary  of masters"  and  other  expenses were promised,  and  that  an amount of Rs. 1,647 was                             177 donated  for  building  the school  and  residence  for  the master;  that the general impression made was so  favourable to the cause that he felt justified in assuring the Calcutta Committee  that  the local Committee were in a  position  to guarantee certain requisites for making a commencement  such as  payment of the salary of the School Master and  Mistress and  the building of a house for their  accommodation  which may  afterwards  be  enlarged  so  as  to  form  a  suitable residence for a Mission.  By letter dated July 10, 1948 the Secretary, Calcutta  Cor- responding  Committee,  informed Rev.  Vaux that  they  were looking  out for a prominent person to  commence  missionary operations by opening a School "which is indeed a common way of  be-inning  a Mission".  In a letter dated  December  22, 1848, written from Bhagalpur it was stated               "The Society will provide for the Missionary’s               salary and trust that local funds will provide               a  residence for him of a suitable kind.   All               other  Mission  requirements, such  as  school               teachers  etc., should be left to be  provided               on the spot." Then  there  are  minutes of the  resolutions  passed  at  a meeting held on October 24, 1849 by the Parent Committee and another  resolution  dated October 25, 1851,  of  the  Local Committee,   to   raise  funds,  and   to   determine   upon disbursements  with the advice of the Missionary,to  promote the  objects of the Mission.  In the minutes of the  meeting dated  October 25, 1851, it is recorded that a statement  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

account  of  receipts and disbursements upto  September  30, 1851  including  expenses of a boy’s school  and  salary  of masters,  "hire of school rooms and furniture" and  expenses of  a  girls’ school "including cost of    working materials upto date" was submitted. In  a letter from the Treasurer of the Committee  dated  May 10,1852, it was stated :               "One  of  the conditions on which  the  Church               Missionary   Society  consented  to   send   a               Missionary to this station was that he  should               be  provided by local friends with a  suitable               residence.  As this appeared to be a sina  qua               non, subscriptions were raised for the purpose               of building a Mission house; . . . To this end               I  propose,  that, as soon as the  balance  in               hand  amounts  to,  Rs. 1 1,000  that  sum  be               transferred  by  me as your Treasurer  to  the               Calcutta   Corresponding  Committee   of   the               C.M.S.;  to  be held by them in trust  as  the               "Bhagalpur  Mission  Fund".  The  interest  of               this  sum will be more than sufficient to  pay               the rent of the present Mission premises, viz.               Rs. 45 per month; and accordingly, as soon  as               the transfer is effected responsibility.   The               whole               178               of  our  remaining  local  funds  and   future               collections can then be devoted to the support               of  schools,  orphanage &., and  we  shall  be               better able to regulate our expenditure by our               means, and increase our efforts in  proportion               to our wants." At a meeting of the Local Committee held on March 22,  1853, it  was resolved that the Committee expresses  their  satis- faction  at the progress made by Mr. Droese in building  the Bungalow and that the Treasurer be authorised to pay to  Mr. Droese ,out of the Reserve Fund the further sum of Rs. 3,500 required to complete the building. At a meeting of the Local Committee held on August 23, 1856, it  was  recorded that on an area of 21 bighas of  land  for which  a perpetual lease was obtained on November 26,  1853, the  Association  had built a Bungalow and offices  for  the Missionary,  houses for native Christians and an  orphanage. At a meeting held on October 17, 1856, it was resolved  that the  Committee  desired  sincerely to thank  Mr.  Brown  for "kind,  active  and  liberal interest he had  taken  in  the Mission  from the first and particularly for making over  to the Society mission property which his own exertions had  in great measure secured". It appears from this correspondence and the resolutions  and the  discussions at the meetings that a permanent  home  for the Boy’s School was set up in 1854 on property acquired  by local  Christians  and  in  buildings  erected  from   funds collected  by them.  The institution along with the land  on which  it was built and the balance of money from the  local fund  were handed over to the Church Missionary  Society  in 1856.   It  is  also true that  substantial  assistance  was obtained from the Church Missionary Society, London.  But on that  account  it  cannot be said that the  School  was  not established  by the local Christians with their own  efforts and  was  not an educational institution  established  by  a minority. The Church Missionary Society Higher Secondary School is  an educational  institution administered by a minority  :  that was  so  found  by  the  High  Court  and  is  not  now   in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

controversy.   The High Court held that the  primary  school started  in  the  year  1854  was  started  by  the   Church Missionary  Society,  London, and such a Society  cannot  be said  to  be a citizen of India and that in  any  event  the persons who constituted the Society were aliens and on  that account it cannot be said that the Church Missionary Society Higher  Secondary School is an educational  institution  es- tablished  by a minority.  It is unnecessary to dilate  upon these   matters  at  length,  for,  in  our  judgment,   the conclusion that the :School was established not by the local Christians of Bhagalpur,                             179 but  by  the  Church  Missionary  Society,  London,  is  not justified  on  the evidence.  The extracts from  the  Record Book clearly show that the local residents of Bhagalpur  had taken  a  leading role in establishing and  maintaining  the school.   Assistance  was undoubtedly  obtained  from  other bodies including the Church Missionary Society, London.  But the School was set up by the Christian Missionaries and  the local residents of Bhagalpur with the- aid of funds part  of which were contributed by them. It  is unnecessary to enter upon an enquiry whether all  the persons  who  took part in establishing the School  in  1854 were  "Indian  citizens".   Prior to the  enactment  of  the Constitution   there  was  no  settled  concept  of   Indian citizenship,   and   it  cannot  be  said   that   Christian Missionaries  who  had  settled  in  India  and  the   local Christian residents of Bhagalpur did not form a minority  It is true that the minority competent to claim the  protection of  Art. 30 (1) and on that account the privelege of  estab- lishing  and  maintaining educational institutions-  of  its choice must be a minority of persons residing in India.   It does  not confer upon foreigners not resident in  India  the right  to set up educational institutions of  their  choice. Persons setting up educational institutions must be resident in  India  and  they must form a  welldefined  religious  or linguistic  minority.   It is not  however  predicated  that protection  of  the right guaranteed under Art.  30  may  be availed  of  only in respect of an  institution  established before  the  Constitution by persons born  and  resident  in British India. It  is  necessary  to bear in mind  the  difference  in  the phraseology used in Arts. 29 and 30 of the Constitution.  By Art.  29(1)  any  section of the citizens  residing  in  the territory  of  India or any part thereof having  a  distinct language, script or ’Culture of its own shall have the right to conserve the same, and cl. (2) guarantees that no citizen shall  be denied admission into any educational  institution maintained by the State or receiving aid out of State  funds on grounds only of religion, race, caste, language or any of them.   The  protection of the rights under Art. 29  may  be claimed only by Indian citizens.  Article 30 guarantees  the right of minorities to establish and administer  educational institutions  :  the  article does not  expressly  refer  to citizenship  as  a  qualification for  the  members  of  the minorities.  In Rev.  Father W. Proost and Ors. v. The State of Bihar and Ors. (1) this Court observed :               "In our opinion the width of Art. 30(1) cannot               be    cut   down   by   introducing   in    it               considerations  on  which  Article  29(1)   is               based.   The  latter  article  is  a   general               protection  which  is given to  minorities  to               conserve their               (1)   [1969] 2 S.C.R. 73.               180

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

             language,  script  or culture.  ......The  two               articles create two separate rights,  although               it  is possible that they may meet in a  given               case." The Court then observed, after referring to the judgment  in Rev.  Sidhajbhai  Sabhai and Others v. State of  Bombay  and Another(1) that               "...... the language of Article 30(1) is  wide               and must receive full meaning.  We are dealing               with protection of minorities and attempts  to               whittle down the protection cannot be allowed.               We need not enlarge the protection but we  may               not reduce a protection naturally flowing from               the words.  Here the protection clearly  flows               from  the  words and there is nothing  on  the               basis of which aid can be sought from  Article               29(1)." The  fact that funds were obtained from the  United  Kingdom for  assisting  in setting up and developing the  School  or that  the management of the institution was carried  on  by- some  persons who may not have been born in India is, not  a ground for denying the protection of Art. 30(1). We are also unable to agree with the High Court that  before any protection can be claimed under Art. 30(1) in respect of the Church Missionary Society Higher Secondary School it was required to be proved that all persons or a majority of them who  established the institution were "Indian  citizens"  in the  year 1854.  There ’being no Indian ’Citizenship in  the year  1854 independently of the citizenship of  the  British Empire,  to incorporate in the interpretation of Art. 30  in respect  of  an institution established by  a  minority  the condition  that it must in addition be proved to  have  been established  by  persons who would, if the  institution  had been  set  up after the Constitution,  have  claimed  Indian citizenship, is to whittle down the protection of Art. 30 in a   manner   not  warranted  by  the   provisions   of   the Constitution. The  order passed by the Educational  authorities  requiring the  Secretary  of  the  Church  Missionary  Society  Higher Secondary  School  to take steps to  constitute  a  Managing Committee  in accordance with the order dated May 22,  1967, is declared invalid. The appeal is allowed and the rule in the two writ petitions is made absolute.  There will be no order as to costs in the two writ petitions.  Since it appears that all the requisite materials were not placed prominently before the High  Court in  the writ petition, out of which Appeal No. 2346 of  1968 has  arisen, we direct that in the appeal the parties  shall bear their own costs throughout. G.C. Appeal allowed. (1)  [1963] 3.S.C.R.837.                             181