It may be seen from the wording of the provision the Section speaks of establishment of the three Universities which had already been established. The fact that the three Universities had already been established is no basis to say that the three Universities are not established under the 1976 Act. Therefore, the expression ‘establishment’ means and includes re-establishment or taking over of both ownership and control of an institution. The interpretation of Article30(1) by the Supreme Court to the effect that the expression ‘establish’ and administer should be read conjunctively means that both the ownership and right of administration must be in the hands of the minority, and that if one of them is absent, the right guaranteed under Article 30(1) cannot be invoked. In other words, a minority having only ownership or only right of administration without ownership, would not be entitled to the protection of Article 30. The Kerala High Court, after considering the relevant paragraph of the judgment of the Supreme Court in Azeez Basha's case [AIR 1968 SC 662.] , held that the expression ‘establishment’ includes the taking over of ownership and control of an institution already existing. I am in respectful agreement with the view taken by the Kerala High Court. Therefore, if a linguistic or religious minority desirous of establishing an educational institution, instead of starting a new educational institution, if it were to secure both absolute ownership and management of an already existing institution, either by purchase or gift or by declaration of the property as a Trust for the benefit of the minority, it is entitled to the right guaranteed under Article 30 in respect of such institution. In all such cases, the test to be applied is, whether both the ownership and the right of administration of the institution concerned is really with the minority concerned? If the answer is yes, the right guaranteed under Article 30 extends.”
