We need not, however, on this occasion go further into the matter and enter upon a discussion and express a final opinion as to whether education being a State subject being item 11 of List 11 of the Seventh Schedule to the Constitution subject only to the provisions of entries 62, 63, 64 and 66 of List I and 1050 entry 25 of List III, the existence of a minority community should in all circumstances and for purposes of all laws of that State be determined on the basis of the population of the whole State or whether it should be determined on the State basis only when the validity of a law extending to the whole State is in question or whether it should be determined on the basis of the population of a particular locality when the law under attack applies only to that locality, for the -Bill before us extends to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State.
28 and a title de hors the Act may be determined in any other court of competent jurisdiction. 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Clause (20) of the Bill was designed to enforce that principle and cl. 29A permits a party to establish in a com- petent court other than that specified in s. Any party to the suit aggrieved by such a determination would be free to sue in a competent court to establish his title to such premises by virtue of the provisions of s.
Thus Anglo-Indians or Christians or Muslims may congregate in one particular suburb of a town or one particular ward of a municipality and they may be in a majority there. It is well known that in many towns persons belonging to a particular community flock together in a suburb of the town or a ward of the municipality. (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons.
A little reflection will at once show that this is not a satisfactory test. 29A on a proper construction thereof, then it is the duty of a court to so construe them that they are in harmony with each other. Again Bihari labourers residing in the industrial areas in or near Calcutta where they may be the majority in that locality will not be entitled to have the minority rights and those Biharis will have no educational institution of their choice imparting education NRI Legal Services in Hindi, although they are numerically a minority if we take the entire city of Calcutta or the State of West Bengal as a unit.
Where is the line to be drawn and which is the unit which will have to be taken ? 30 (1) and, strictly speaking, for answering question 2 we need not enquire as to what a minority community means or how it is to be ascertained The Anglo-Indians in the State of Travancore- Cochin before the re Organisation of the States numbered only 11,990 according to the 1951 Census. Are we to take as our unit a district, or a sub- division or a taluk or a town or its suburbs or a municipality or its wards ?
nThey also, however, form the NRI Legal Services majority community in certain other areas NRI Legal Services of the State. The last sentence, of that Article also appears to run counter to such argument. Even if it be assumed that a claim to a right to tenancy of premises is a question of title to the premises, is that a title which s. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice.
That is to say, a title which could not be established outside the Act but 377 which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a court specified in s. If it is possible to avoid a conflict between the provisions of s. By this test Christians, Muslims and Anglo-Indians will certainly be minorities in the State of Kerala. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be.
350-A in support of the argument that a local authority may be taken as a unit. (In (1951) 3 Assam 384, it was held that persons who are alleged to be a minority must be a minority in the particular region in which the institution involved is situated). Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment.
45 must have full play. There is no immorality or impropriety involved in such a proposition. On the other band, in a suit NRI Legal Services where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the courts specified in s. According to the argument of learned counsel for the State of Kerala the Anglo-Indians or Christians or Muslims of that locality, taken as a unit, will not be a ” minority ” within the meaning of the Articles under consideration and will not, therefore, be entitled to establish and maintain educational institutions of their choice in that locality, but if some of the members belonging to the Anglo-Indian or Christian community happen to reside in another suburb of the same town or another ward of the same municipality 1049 and their number be less than that of the members of other communities residing there, then those members of the Anglo- Indian or Christian NRI Legal Services community will be a minority within the meaning of Arts.
Further such a construction will necessitate the addition of the words ” within their jurisdiction ” after the words ” minority groups “. 29 and 30 and will be entitled to establish and maintain educational institutions of their choice in that locality. The illustrations given above will apply to that case also. It is admitted that out of the total population of 1,42,00,000 in Kerala there are only 34,00,000 Christians and 25,00,000 Muslims. These are, no doubt, extreme illustrations, but they serve to bring out the fallacy inherent in the argument on this part of the case advanced by learned counsel for the State of Kerala.
The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. It is possible to conceive of cases where in a suit under s. (2) A licence granted under sub-paragraph (1) shall be in Form A and shall be subject to such conditions as are specified therein and such other conditions as the Director may lay down from time to time in the interest of fair distribution NRI Legal Services of kerosene within the State.
But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.