Prahlad Rai Jhunjhunwala vs The State of Bihar and Others

B.D. Singh, J.—This application by Prahlad Rai Jhunjhunwala under Articles 226 and 227 of the Constitution of India, is directed against the order dated the 2nd May 1973, as contained in Annexure 3, passed by the District Education Officer Bhagalpur (respondent No. 3), superseding the managing committee of the school named and styled as ''Shri Hanuman Adarash Madhyarnik Vidyalaya (Middle School)'' and appointing an ad hoc committee. The relevant portion of the impugned order reads thus:--

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In order to appreciate the point involved in this case, it will be necessary to state briefly the facts as stated by the petitioner in his application. The said school was founded by the petitioner who is the present Secretary of the Managing Committee of the said school, in memory of his father late Sri Hanumandas Jhunjhunwala in the year 1965. The said school is located in a building bearing holding No. 2, Bhudharmall bye-lane in Ward No. 4, Circle No. 7 within the Bhagalpur Municipality, P.S. Kotwalia. The building stands in the name of the petitioner''s mother Srimati Dida Devi. According to the petitioner, the aims and object of the said institution are to make the boys proficient in Hindu religion by laying stress on teaching of Geeta and Ramayan, through Sanskrit medium and to build the character of the students. The said school was established by the funds donated by the petitioner and is managed and financed by the founder petitioner. According to him, the management is done through a properly constituted managing committee by the petitioner

One Gokulanand Choubey was appointed as the Headmaster of the school sometime in February 1968. He started various acts of indiscipline and indulged in politics in the school to the detriment of the school, causing indiscipline among the teachers and students and thereby hampering the teaching of the students. Accordingly, the was warned to refrain from such conduct. He committed various illegal acts and misappropriated the funds of the school and, therefore, he was suspended on and from 1st April 1972, by an order passed by the Managing Committee and an explanation was also called for from him. In his explanation he admitted his guilt by his letter dated 9th June 1972 and promised to rectify his conduct and to devote his time for the better administration and improvement of the teaching of the school, but instead of improving his conduct, he formed a group in the school and tried to infuse indiscipline among the students and teachers with the result that the teaching had come to a standstill. Hence, the Managing Committee was compelled to call a meeting of the Committee on 2nd September 1972, wherein by a resolution of that date Shri Gokulanand Choubey was discharged from service. The said resolution of the Managing Committee was confirmed at a subsequent meeting held on 13th September 1972. However, in league with two other teachers he tried to create breach of the peace and to disturb the teaching of the school so that the Managing Committee may not run the institution. It appears that ultimately report had to be made to the police authority, who submitted his report dated the 13th July 1972 to the Subdivisional Magistrate, Bhagalpur recommending therein for taking action against Gokulanand Choubey and two others u/s 117(3) of the Cr. P. C. On receipt of the police report and after hearing the parties and perusing the show cause, the Subdivisional Magistrate by his order dated the 13th February 1973, found as a fact that the said persons, as admitted by them, had been removed from their services of the school and they were trying to create trouble endangering public peace with the help of hired Goondas in order to harass the existing Managing Committee. The Subdivisional Magistrate passed an order in the said proceeding u/s 144 of the Cr. P. C., making the same absolute against Gokulanand Choubey and two others. The District Education Officer, on his part, also submitted a report to the Sub-divisional Magistrate that register, receipts and other papers of the school had been removed by Gokulanand Choubey and two others and requested the Subdivisional Magistrate in the interest of the institution not to permit them to enter the premises of the school. A copy of the report of the District Education Officer dated the 13th January 1973 is Annexure 1 to the main application. Subsequently, the District Education Officer started to interfere with the working of the School and ultimately the impugned order dated the 2nd May 1973 (Annexure 3) was passed against the petitioner. According to the case of the petitioner the said institution is a proprietary school and the education authority has no right to interfere with the said institution

A counter-affidavit has been filed on the 14th August, 1973, on behalf of respondent No. 7 (Vijay Kumar Mitra M.L.A. President of the ad hoc committee) appointed by the impugned order, inter alia, justifying the impugned order and denying the assertion made by the petitioner about the proprietary nature of the said institution. According to respondent No. 7 the school was not a proprietary school. A separate counter-affidavit on behalf of respondents 1 to 6 and 8 has been filed on the 28th September, 1973. In this counter-affidavit also the impugned order has been justified, and it was also stated therein inter alia, that the said school was not a proprietary school and, therefore, the school authority had every right to a control the school in accordance with law

Thereafter, on the 16th October 1973, the petitioner filed a rejoinder to counter-affidavits filed on behalf of respondents Nos. 7 and 1 to 6 and 8 dated 14-8-1973 and 28-9-1973 respectively. On the 2nd January 1976 the petitioner filed a supplementary affidavit to his petition.

Learned Counsel for the petitioner has raised the following points for consideration by this Court:--

(i) The petitioner''s school being the proprietary school, the District Education Officer (respondent No. 3) had no power to pass the impugned order dissolving the Managing Committee of the school and appointing an ad hoc committee; (ii) Article 206 of the Education Code 8th Edition has no statutory force and, therefore, according to the petitioner, respondent No. 3 had no jurisdiction to act under the said Article, nor he has any such powers under any of the provisions to appoint an ad hoc committee; (iii) the Managing Committee of the school had never agreed to hand over the management of the school to the State, and as such at no point of time, it ceased to be a proprietary school; and (iv) the impugned order has been passed in violation of the principles of natural justice.

It will be convenient to deal with point No. (ii) first. It is true that Article 206 of the Education Code 8th Edition has no statutory force, as has been held by this Court in various decisions. Reference may be made to my own judgment in the case of the The Managing Committee of the Mungraura Middle School Vs. The District Education Officer and Another, . In that case the provisions contained under various articles of the Education Code, 7th Edition, have been held to have a statutory force. There is no corresponding provision of Article 206 of the 8th Edition in the 7th Edition of the Education Code. However, in the above case, I have held that the label does not matter. We have to look to the impugned order itself. If the order passed by respondent No. 3 can be referable to the other provisions, the mentioning of Article 206 in the impugned order will not be of any consequence. In that judgment, in paragraph 5 I have mentioned that Clause (2) of Section 8 of the Bihar High Schools (Control and Regulation of Administration) Act, 1960, lays down that the provisions of the Bihar Education Code, 7th Edition, as mentioned from time to time and all the resolutions and orders of the State Government or the Director of Public Instruction, Bihar a collection of which was published in the Extraordinary issue of the Bihar Gazette of the 23rd March 1959, and which were in force on the date of commencement of the Act, would be deemed to be the Rules made under the Act for the purpose of the Act''. In that view of the matter, we have also to examine the extraordinary issue of the Bihar Gazette of the 23rd March 1959. In that issue there is a resolution dated the 24th July 1958. Rule 1 (e) contained therein reads thus :--

"1. Withdrawal or withholding of recognition.-- Recognition shall only he withdrawn or withheld for reasons to be recorded in writing and on one of the following grounds:--

(e) that the Managing Committee of the school not functioning in a way conducive to the smooth administration of the school affairs or proper maintenance of discipline among the teachers or pupils, is not carrying out the directions of the Board of Secondary Education or any competent authority or is not administering the finances of the school properly."

Thereafter the relevant provision is to be found under Rule 1-B of the said Resolution which reads thus :--

"Withdrawal of approval to the constitution of the Managing Committee--For reasons specified in Clause (e) of the aforesaid rule, the President, Board of Secondary Education in respect of Secondary Schools and District Education Officer in respect of Elementary Schools instead of withdrawing or withholding recognition, may withdraw the approval to the constitution of the Managing Committee and make such arrangements for the management of the school, as he considers suitable pending proper reconstitution of the Managing Committee. For the purpose of this rule, Elementary Schools will mean, "Primary and Middle Schools."

Accordingly, these provisions have statutory force and in my opinion they apply also to the elementary schools including one of the petitioner. If that is so, the District Education Officer (respondent No. 3) acquires jurisdiction under the said Rule to control the administration of the school of the petitioner. In that view of the matter, the submission of the learned counsel for the petitioner on point No. (ii) has no merit.

At this stage learned Counsel for the petitioner contended that the said provisions of the said resolution are ultra vires as it has given an unbridled power to respondent No. 3 and there is no provision for filing appeal against the order passed by respondent No. 3. In order to find support to his contention learned Counsel for the petitioner has relied on a decision of the Supreme Court in the case of Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, , and a reference was made to paragraph 12 of the said judgment. In chat case, their Lordships were considering, inter alia, the provisions contained u/s 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 (Punjab Act No. 31 of 1959). It was observed therein that assuming that persons in occupation of Government properties and premises form a class by themselves as against tenants and occupiers of private owned properties and that such classification was justified on the ground that they require a differential treatment in public interest, those who fall under the classification are entitled to equal treatment among themselves. If the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other, discrimination must result if it was left to the will of the authority to exercise the more prejudicial against some and not against the rest. The procedure u/s 5 is obviously more drastic and prejudicial procedure than the one under the C. P. C. There can be no doubt that Section 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure u/s 5, that section has lent itself open to the charge of discrimination as being violative of Article 14. In that view of the matter Section 5 was declared as void. In my opinion, the above observation is not applicable in the instant case. Firstly in view of the Presidential Proclamation suspending the provisions under Article 14 of the Constitution, the violation of Article 14 is not open to the petitioner at the moment. Besides, the facts of that case were entirely different to that of the present case. In my view the provision contained under Rule 1-B, referred to above, is not ultra vires, and it does not confer an unbridled power on respondent No. 3. A reference may also be made to a Full Bench decision of the Kerala High Court in the case of The State of Kerala and Others Vs. Annam and Others, where their Lordships in para. 32 at p. 59 observed as follows :--

"... ... ... ... The Court cannot presume that the administration of a particular law would be done "with an evil eye and unequal hand." The jurisdiction to decide is conferred on a responsible officer,................."

Besides, if aggrieved by such an order, it was open to the petitioner as it has been in the instant case, to come to this Court under Article 226 of the Constitution. Therefore, it cannot be held that respondent No. 3 had unbridled power and the power exercised by him was not subject to supervision by this Court. Reference may also be made to a decision in the case of The State of Bombay Vs. Saubhagchand M. Doshi, , where it was observed in para. 13 at p. 901 that "no assumption ought to be made that the State Government'' or the authority will abuse its powers". In this connection reference may also be made to an unreported decision D/- 30-9-1975 in Criminal W. J. C. No. 70 of 1973 where similar arguments were advanced regarding the authority having unbridled power, as well as there being no provision for appeal or revision against the order passed by an authority. In that case I had held while sitting in the Division Bench that the provision was not ultra vires on that score. Under this heading it was also urged by learned Counsel for the petitioner that even if it is held that the provision contained under Rule 1-B is not ultra vires, according to him it did not confer power on respondent No. 3 to appoint an ad hoc committee. In this connection he has referred to a Bench decision of this Court in the case of Rambilas Ojha v. President, Board of Secondary Education, Bihar. 1973 BBCJ 396 . In that case S. N. P. Singh (now the Chief Justice) and Shiveshwar Prasad Sinha, JJ., were considering the provisions contained under Rule 17-A (1) and Rule 9, Clauses (5) and (7) of the Bihar High School (Constitution, Powers and Functions of the Managing Committe) Rules, 1964. In the said judgment they also considered the provisions contained u/s 5 (3) of the Bihar High Schools (Control & Regulation of Administration) Act, 1960 as well as Rule 39 of the Bihar High Schools (Constitution. Powers & Functions of Managing Committee) Rules, 1964. According to their Lordships, although they have observed that Section 5 (3) of the Act and Rule 39 of the Rules provide implied power on the school authority to appoint ad hoc committee, Rule 17-A (1) and Rule 9, Clauses (5) and (7) do not confer implied power on the school authority to appoint an ad hoc committee. In the instant case I have mentioned earlier that the provisions contained under Rules 1-B and 1 (e) of the Resolution dated the 24th July 1958, published in the Extraordinary Gazette dated the 23rd March 1959, shall be applicable. Therefore, we have now to compare the provisions contained u/s 5 (3) of the Act and Rule 39 with the provisions contained under Rule 1-B. According to me, there are similar provisions under Rule 1-B. In that view of the matter, if Section 5 (3) of the Act as well as Rule 39 of the Rules is interpreted, so as to confer power on the school authority of appointing an ad hoc committee, in my view the provision contained under Rule 1-B also, is wide enough to include such a power upon a school authority to appoint an ad hoc committee. Therefore, in my opinion the contention of learned Counsel for the petitioner on this account also has no substance.

Now I deal with point No. (iv). Learned Counsel for the petitioner has submitted that there has been violation of principles of natural justice. In my opinion, there is no substance in this point, because I do not find any material in the main application of the petitioner to hold that there has been violation of the principles of natural justice, nor do I find that any specific plea was taken in the writ application that no opportunity was given to the petitioner. On the contrary, it appears that opportunity was given to the petitioner to file his show cause, and the petitioner had also filed show cause and thereafter the impugned order was passed. It is true that in the impugned order, it is not mentioned specifically that the show cause of the petitioner was also perused but in my opinion on that account the contention of learned Counsel for the petitioner in this regard cannot be sustained as, as mentioned already, no specific point was taken in the main application. If no such point was taken in the main application, the respondents could not have made that point in the counter-affidavits filed by them. In the reply to the counter-affidavit or in the supplementary affidavit filed by the petitioner in this regard cannot be looked into, as it has been held by this Court that the main assertion should be in the main application itself. If subsequently any assertion is made on behalf of the petitioner, then in that case, the main application should be amended by the petitioner. Therefore, this point is answered against the petitioner.

Now I advert to consider points (i) and (iii) together. It is true that the provisions as contained under Rules 1-B and, 1 (e) of the said Resolution dated the 24th July, 1958, would not apply in the case of an institution which is a proprietary one. If it is found that the petitioner''s institution is a proprietary one then the impugned order cannot be sustained but sitting in writ jurisdiction, it would be difficult for me to decide these issues particularly when, as mentioned earlier, these facts have been strongly controverted by the respondents. When there is a disputed question of fact, it is well settled that the matter cannot be looked into in a writ jurisdiction. The proper remedy of the petitioner was to file a suit for such a declaration. I am told by learned Counsel for the respondents that title suit No. 62 of 1973 is pending disposal in the Court of the Second Munsif, Bhagalpur. In this connection learned counsel for respondent No. 7 has referred to his counter-affidavit filed on the 14th August 1973 wherein Annexure C has been appended which is one of the orders passed by the First Additional Subordinate Judge on the 22nd May 1973. It may be noticed that this order is an appellate order affirming the order of the learned Munsif passed in the aforesaid title suit. That also shows that one of the points taken in the said suit instituted by the petitioner was that his institution is a pro-perietary one. However, in that case the school authorities are not parties. I am told that at present no issue has been framed in that title suit. Therefore, according to me, that decision will not be conclusive on the point, as to whether the petitioner''s institution is a proprietary institution or not. In such a circumstance, for such kind of declaration, it will be necessary that the State Government itself should decide this matter, specially when various representations of the petitioner are pending before the State Government. For illustration learned Counsel for the petitioner has referred to Annexure 14 which is a letter dated the 11th March 1.975, written by respondent No. 3 to the Director of Schools, Education Bihar, Patna. From the said letter it is clear that the petitioner''s representations are pending for consideration. In the facts and circumstances of the case, therefore, I direct respondent No. 1 the State of Bihar, Department of Education. to dispose of the representation of the petitioner in respect of his institution known as "Shri Hanuman Adarsh Madhyamik Vidyalaya (Middle School)", for declaration of a proprietary school, within four months from, today,

In the result, the application is dismissed with the above direction to the State Government. It is, however, made clear that if his representation is not favourably decided, within that time, it will be open to the petitioner to file a title suit for making such a declaration after impleading necessary parties therein. In the circumstances of the case, there will be no order as to costs,