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Sribatsha Kanugo and ors. Vs. Board of Secondary Education and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 261 of 1967
Judge
Reported inAIR1969Ori301; 34(1968)CLT1162
ActsConstitution of India - Articles 31, 31(1), 226, 367 and 367(1); General Clauses Act - Sections 3(42); Orissa Education Code - Article 41
AppellantSribatsha Kanugo and ors.
RespondentBoard of Secondary Education and ors.
Appellant AdvocateB. Mohapatra, ;N.C. Patnaik and ;R.K. Mohapatra, Advs.
Respondent AdvocateAdv. General and ;M. Mahanti and ;A.K. Tripathy, Advs.
DispositionPetition allowed
Cases ReferredCourt Chakradhar Samal v. Inspector of Schools
Excerpt:
.....between the public and the managing committee and also amongst the members themselves of the managing committee of the nigam high school, ameipal in the district of cuttack, which stand in the way of smooth management of the school. 2 which threatens the invasion of the fundamental rights of the petitioners and the managing committee is clearly hit by the provisions of article 31 of the constitution as it involves deprivation of the property without the authority of law. we are, therefore, of opinion that no claim before a court of law can be founded by any body -like the newly constituted managing committee the contesting opposite parties herein -relying on the impugned order of dissolution and reconstitution passed under the aforesaid article 41 of the orissa education code which..........purporting to act under article 41 of the orissa education code by which he dissolved the existing managing committee of the school and reconstituted a new managing committee on the grounds mentioned in the petition.2. it is said that there was no high english school in the locality of the petitioners till the year 1962. there was a general public demand for such a school and accordingly in pursuance of a unanimous resolution by the local public a managing committee was formed with petitioner no. 1 as the president, petitioner no. 2 as the secretary and other members including petitioner no. 3, to raise funds and to manage the proposed high english school in the village ameipal they are stated to have donated land by a registered document on february 19, 1962. there were also other.....
Judgment:

Barman, C.J.

1. In this writ petition tile petitioners, being the Managing Committee of the Nigam High English School, a private educational institution, in village Ameipal its President, Secretary and one of the members, challenge the order dated August 9/10, 1967 of the Inspector Of Schools, Cuttack Circle, Cuttack, purporting to act under Article 41 of the Orissa Education Code by which he dissolved the existing Managing Committee of the School and reconstituted a new Managing Committee on the grounds mentioned in the petition.

2. It is said that there was no High English School in the locality of the petitioners till the year 1962. There was a general public demand for such a school and accordingly in pursuance of a unanimous resolution by the local public a Managing Committee was formed with petitioner No. 1 as the President, petitioner No. 2 as the Secretary and other members including petitioner No. 3, to raise funds and to manage the proposed High English School in the village Ameipal They are stated to have donated land by a registered document on February 19, 1962. There were also other donations for the School, all by registered documents as stated in the petition. The Managing Committee is said to have held the lands donated as trustees for the benefit of the school for construction of the School building. It is said that through the efforts of the local public, the foundation-stone was laid for construction of the school building on the land. In 1963 the School was given recognition and was permitted by the Inspector of Schools to open Class VIII and thereafter in 1965 the Inspector of Schools again granted recognition and permitted the opening of Classes IX to XI. In due course, the students of the School were admitted for the High School Certificate Examination of the years 1965-66 and 1966-67 according to the provisions of the Orissa Secondary Education Act. 1963. The School was also given annual grants.

3. As it appears from the records there were some alleged disputes and differences between the villagers of Ameipal and those of Thikiri regarding the school as a result of which there was an enquiry by the Inspector of Schools. Ultimately, the Inspector of Scools by the impugned order dated August 9, 1967 dissolved the Managing Committee and constituted a new Managing Committee. The relevant portion of the impugned order of the Inspector of Schools is this:

'On receipt of information and also enquiry I am satisfied that there are disputes between the public and the Managing Committee and also amongst the members themselves of the Managing Committee of the Nigam High School, Ameipal in the district of Cuttack, which stand in the way of smooth management of the School. I, the Inspector of Schools, Cuttack Circle, Cuttack, acting under Article 41 of the Orissa Education Code, with the concurrence of the District Magistrate, Cuttack, do hereby dissolve the existing Managing Committee of Nigam High School, Ameipal and reconstitute a new Managing Committee for the said High School with the following members

XX XX XXSd. C. S. Murty

Inspector of Schools,

Cuttack Circle, Cuttack.

The Secretary of the School is requested to hand over charge of the School to the newly elected Secretary of the reconstituted Managing Committee forthwith, under report to the undersigned.

Sd. Illegible

Inspector of Schools

9-8-67.'

4. The main grounds on which the petitioners challenge the impugned order of the Inspector of Schools dissolving the old Managing Committee & directing its Secretary to hand over charge of the school to the newly elected Secretary of the reconstituted Managing Committee, are set out in paragraphs 18, 19 and 20 of the petition as quoted below:

'18. That the petitioners beg to submit that the petitioners have acquired the proprietary right in respect of the building, and other immovable and movable properties of the school which has legally vested in them and they are in peaceful and undisturbed possession of the same.

19. That the provisions of the Orissa Education Code have no greater sanction than an administrative order, instruction and rule and is not based on any statutory authority or other authority which could give it the force of law and in the circumstances the action of the opposite party No. 2 in pursuance of the provisions of the Orissa Education Code cannot deprive the petitioners of their right in the properties as aforesaid.

20. That the impugned order dated 10-8-67 passed by the opposite party No. 2 which threatens the invasion of the fundamental rights of the petitioners and the Managing Committee is clearly hit by the provisions of Article 31 of the Constitution as it involves deprivation of the property without the authority of law.'

5. The maintainability of the writ petition -- challenging the impugned order of dissolution and direction to the Secretary to hand over charge to the Secretary of the new Managing Committee as invading the fundamental right of the petitioners guaranteed under Article 31 of the Constitution -- was questioned on, the ground that the Managing Committee is neither a 'person' nor a 'citizen' who can claim fundamental right under the Constitution. In support of this contention, the contesting opposite parties relied on the definition of 'person' as given in Section 2(1)(b) of the Citizenship Act, 1955 providing that in the said Act unless the context otherwise requires, a 'person' does not include any company or association or body of individuals, whether incorporated or not. In other words, the point of the said opposite parties is that the Managing Committee not being a person or citizen, can claim no fundamental right under the Constitution. There was a lengthy argument urged on behalf of both sides in support of their respective contentions. In our opinion, the objection to the maintainability of the writ petition, raised by the said opposite parties loses its force in view of Article 367(1) of the Constitution which provides that unless the context otherwise requires, the General Clauses Act, 1897 shall, subject to any adaptations or modifications that may be made thereunder under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. Section 3(42) of the General Clauses Act is this.

'3. In this Act and, in all CentralActs and Regulations made after the commencement of this Act, unless there fsanything repugnant in the subject-matteror context xx xx x

(42) 'person' shall include any company or association or body of individuals, whether incorporated or not.'

Therefore, in view of the clear provisions of Article 367(1) of the Constitution, the, definition of 'person' as given in Section 3(42) of the General Clauses Act will ap-ply and the maintainability of the writ petition filed by the petitioners cannot be challenged on the ground that the said Managing Committee not being a 'person' cannot claim a fundamental right under the Constitution. Therefore, the Managing Committee as a person can apply under Article 226 of the Constitution on the ground that it has a fundamental right to property guaranteed under Article 31(1) of the Constitution which provides that no person shall be deprived of his property except by the authority of law as claimed in the petition. Therefore, the objection to maintainability of the writ petition is not tenable.

6. Now, coming to merits, Article 41 of the Orissa Education Code, under which the Inspector of Schools, by the Impugned order, purported to dissolve the existing Managing Committee and reconstitute a new Managing Committee is this:

'41. Consultation with Revenue Commissioner or District Magistrate:--Managing Committee or Advisory Committee of a school and the local public, or among the members of themselves (sic) of the Managing Committee or Advisory committee, the Inspector of Schools should obtain the opinion of the Dist. Magistrate before giving his decision. The Inspector of Schools may reconstitute the Managing or Advisory Committee if, after consulting the District Magistrate, he considers it necessary to do so.'

(G. O. No. 5737-E, dated the 17th July. 1954)

It is now the settled position in law that the Orissa Education Code has no statutory force. The so-called Articles in the Code are not framed either under any statutory enactment or under any provision of the Constitution. They are merely in the nature of administrative instructions for the guidance of the Department and are purported to have been issued under the executive power of the State. As they have no statutory force, the purported order of the Inspector of Schools for dissolution and reconstitution of the Managing Committee under Article 41 cannot confer any right on the newly constituted Managing Committee, and they cannot claim any rights on the basis of the impugned order passed under Article 41 which is a mere administrative instruction. We are, therefore, of opinion that no claim before a Court of law can be founded by any body -- like the newly constituted Managing Committee the contesting opposite parties herein -- relying on the impugned order of dissolution and reconstitution passed under the aforesaid Article 41 of the Orissa Education Code which is merely an administrative instruction and not a statutory rule. This view is supported by the decision of the Supreme Court in G. J. Fernandez v. State of Mysore, AIR 1967 SC 1753, 1756.

7. That apart, in a recent similar case of this Court Chakradhar Samal v. Inspector of Schools, Cuttack Circle, O. J. C. No. 383 of 1966 D/- 10-11-1967 (Ori.), this very Bench held that an order of dissolution passed by the Inspector of Schools under Article 41 of the Orissa Education Code cannot stand. The reasoning which weighed with us was that the Inspector of Schools had no authority to interferp with a private school; that it is open to the Managing Committee sought to be replaced not to respect the order of dissolution and it is open to them to carry on the management of the school in the way they desire.

8. In the view we have taken, as aforesaid, both on the point of maintainability and on merits, it is unnecessary to deal in detail with the question as to whether the impugned order offends Article 31 of the Constitution. Accordingly, the impugned order dated August 9/10, 1968 is quashed. The writ petition is allowed, but there will be no order as to costs,

Ray, J.

9. I agree.


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