R.BALIA - (1.) These three petitions raise an identical issue and are hereby decided by this common order. The petitioner in Special Civil Application No. 7907 of 1997 is H. B. Kapadia Education Trust established by H. B. Kapadia and R.H.Kapadia by Trust Deed dated 15-3-1956. Special Civil Application No. 7908 of 1995 is by Preyas Education Trust settled by Arvindbhai Mohanlal Shah by Trust Deed dated 8-2-1960 and Special Civil Application No. 7909 of 1995 is by Kapadia Education Trust established by Trust Deed dated 5-3-1956 by H. B. Kapadia. All the three trusts applied to the State Government claiming benefit of being exempt from the provisions of S.17(21), Secs. 34, 35 and clause (b) of sub-S.(1) and sub-secs. (2), (3), (4) and (5) of S.36 in terms of S.40A stating that the trusts are established and administered by the persons belonging to minority community of Jains.
(2.) In the first instance when the application dated 2-2-1994, 12-2-1994 were not decided in respect of H. B. Kapadia as well as Preyas Education Trust the respective trusts filed Special Civil Application No. 2785 of 1995 and 4471 of 1995 in which ultimately the Court directed the competent officer to decide the applications within the time specified i.e., 31-5-1995 and 31-7-1995. Finally by separate orders 2657 made on 17-8-1995 the Secretary, Gujarat Secondary Education Board had rejected all the three applications. The reasons as per the translated version of order submitted along with the petition for refusal are firstly there is no term in the constitution that the member except Jain cannot remain in the trust. It means at the time of establishment of the trust, there were, the members except the Jain community. Hence, it proves that the institution is not established by minority community. Secondly, it was stated by the Secretary that there is also not a provision that only the person of Jain minority community can be appointed as the trustees and the method of appointment of trustees has been so provided from which it becomes clear that the trust is not established by minority community. Moreover, it is not that the administration of the trust will be made by only the persons of minority community. However, it found that at present all the persons who are trustees belonged to Jain religion. With the aforesaid conclusion the Secretary concluded that it does not prove that as per the provisons of Art. 29/30 of the Constitution, the institution is established by minoity community and administration of it is made by minority.
(3.) It will be apposite to refer to Arts. 29 and 30 of the Constitution of India and S.40A of the Gujarat Secondary Education Act. "Art. 29 : Protection of interests of minorities :- (1) Any section of the citizens residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same. (2) 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." "Art. 30 : Rights of minorities to establish and administer educational institutions :- (1) All minorities, whether based on religion or language, shall have the right to established and administer educational institutions of their choice. (1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language." "S.40A : Nothing contained in clause 23 of S.17, Secs. 34 and 35, and clause (b) of sub-S.(1) and sub-secs. (2), (3), (4) and (5) of S.36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language.";