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Birla Higher Secondary School and ors. Vs. Lt. Governor and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Appeal No. 11 of 1973
Judge
Reported inILR1973Delhi804; 1974RLR570
ActsConstitution of India - Article 133(1)
AppellantBirla Higher Secondary School and ors.
RespondentLt. Governor and ors.
Advocates: L.M. Sanghvi,; Ravnder Narain,; S.N. Chopra and;
Cases ReferredHis Holiness Kesavananda Bharatu Sripadaga Ivara v. State of Kerala and Another
Excerpt:
.....proper that all ordinary litigation should end in the high court, and only exceptional circumstances should justify recourse to the supreme court. after careful consideration the law commission recommended 'one more limitation' to the right of appeal, that: we have already expressed our views on the merits of that point in this as well as our earlier judgment. the principles on which mandamus is granted are well settled......right, but only the conditions upon which the high court may certify a case for appeal. if the right of appeal to the supreme court, be strictly a right at all, it certainly is not a fundamental right. nor was it claimed to be such. moreover, 1. c. golak nath and others v. state of punjab and another : [1967]2scr762 , is now overruled by the majority decision of the supreme court in civil writ no. 135 of 1970 entitled his holiness kesavananda bharatu sripadaga ivara v. state of kerala and another decided on 24-4-1973, and it has been held that parliament is vested with power to amend even part iii of the constitution. we must, thereforee, consider whether the petitioners are entitled to a certificate under the new article 133(1). (8) an appeal under that article lies to the supreme.....
Judgment:

T.P.S. Chawla, J.

(1) In the judgment pronounced on 8th December 1972 in Civil Writ No. 562 of 1972 entitled Birla Higher Secondary School and others, v. Lt. Governor, Delhi and others we held that:

(A)the Delhi Education Code conferred no power on the Director of Education to order reinstatement of the Principal of Birla Higher Secondary School, and the direction to that effect, as also the subsequent threats to withdraw recognition of and the grant-in-aid to the school for failure to comply with the same were without jurisdiction and/ or justification. (b) the letter dated 11th August 1972 issued by the Deputy Director of Education stopping the grant-in-aid to the school was likewise without jurisdiction and/or justification and (c) the Code had no legal force and the threat to suspend the Management of the School was without authority of law.

(2) Consequently, we allowed the petition and ordered the respondents to withdraw and cancel various letters, including the one of 11th August, 1972, containing those threats, and to forbear from taking any action in pursuance of the same. We also prohibited the respondents from interfering with the management by the petitioners' of their school except by authority of law. At the end of the judgment we said :

'TOavoid doubt we make it clear that nothing in this judgment requires the respondents to restore or continue the grant-in-aid.'

(3) That is the sentence by which the petitioners are aggrieved, and has caused them to move this application for a certificate under clauses (a), (b) and (c) of Article 133(1) of the Constitution.

(4) At the commencement of his address, counsel for the petitioners made the naive suggestion that, perhaps, the sentence had crept into the judgment inadvertently for, in his view, it was inconsistent with the findings and the tenor of all that preceded it. If that were so, he intimated, the petitioners would be content if the judgment were expurgated by removing the offending sentence, and they would not then ask for leave to appeal. We do not assent to that suggestion. It is evident from the sentence complained of that, far from inadvertence, it is the result of some deliberation and an attempt of forestall possible misunderstanding of the order we made. We held, following Union of India & others v. M/s. Angle Afgan Agencies etc. A.I.R. 1968 S.C. 718, that the respondents were bound to act in accordance with the Delhi Education Code, which, although not law, was an administrative scheme by which they were bound, and of a kind which was enforceable. Those conclusions led to the order we made against the respondents. But, we also held, a little earlier in the judgment, that we could not order restoration of the grant-in-aid; not only for the reason that under the Code there was no obligation whatsoever to pay it, but also because Article 50 of the Code expressly nullified any claim of right. That Article provides :

'RECOGNITIONof a School, however, does not automatically entitle it to grant-in-aid nor can the award of grant-in-aid or its continuance be claimed as a matter of right'.

(5) We could not see how it was possible to order restoration or continuance of the grant-in-aid without driving through that Article with a coach and six- Naturally, we were anxious to ensure that nothing in the order we made should have or seem to have that implication. The direction to the respondents to withdraw and cancel their letter of 11th August 1972, stopping the grant-in-aid, and to forbear from taking any action in pursuance of it, could conceivably be understood as carrying the implication that we had directed the respondents to restore or continue the grant. That is not what we meant. We only intended to restrain the respondents from acting in a manner not warranted by the Code: we did not intend that they should do that which they were not bound to do. So, the sentence was necessary. We do not think there is any inconsistency in what we said in our judgment. In effect, we told the respondents that they could not stop the grant-in-aid for the reasons stated or implicit in the letter of 11th August 1972, but that they were not bound by our judgment to give it if there were Other reasons for not doing so. This does enable the respondents, if they are so minded, to refrain from granting the aid. But, that will not justify our ignoring Article 50 of the Code. Such a result was not unforeseen for as we indicated in our earlier judgment, 'at heart the system is voluntary.'

(6) Then, it was said, that in Arnratlal Ranianlal and others v. The Slate of Gujarat and others. : AIR1972Guj260 a different view was taken. There, by an order of the Director of Educaiion, the management of a school was made to deposit the equivalent of one year's salary of a discharged Head-Mistress before being allowed to withdraw the yearly grant. A single Judge ordered the return of the deposit holding that there was no power to take or appropriate it From the judgment in that case it does not appear that there is any provision equivalent to Article 50 in the Gujarat Grant-in-Aid Code; nor was any such shown to us. On the contrary, passages on pages 262 and 264 of the report seem to show that a right to obtain a grant-in-aid is given by Chapter Iii and Rule 89.1 of that Code on the fulfillment of certain conditions. That is sufficient to distinguish that case from the one we decided. As, under the Delhi Education Code there is no obligation to award a grant-in-aid, and a claim of right to it is specifically repudiated, a mandamus cannot issue. For the same reason Tukaram G. Gaokar, v. R. N. Shukla and others : 1968CriLJ1234 , United Provinces v. Governor-General in Council and Kesavan Bhaskaran v. State of Kerala, : AIR1961Ker23 will not apply.

(7) Still, assuming we were in error in the view that we took, we must go on to consider whether to certify the case as fit for appeal to the Supreme Court. It was contended that, notwithstanding the fact that our judgment was delivered much before the Constitution (Thirtieth Amendment) Act 1972 was brought into force, the effect of section 3 of that Act was to apply the newly substituted Article 133(1) of the Constitution to the proceeding before us. This, however was subject to the contention that the Constitution (Thirtieth Amendment) Act 1972 was itself ultra virus as it was beyond the power conferred upon Parliament under the Constitution. The sole ground propounded for this contention was, that, by the amendment the fundamental rights of the petitioners guaranteed by Article 14, 19 and 31 of the Constitution were effected, and the power of Parliament to amend the Constitution did not extend that far. Reliance was placed on I. C. Golak Nath and Others v. State of Punjab and Another : [1967]2SCR762 , and H. H. Maharajadhiraja Madhey Rao Jivaji Rao Sciendia Bahadur and others etc., v. Union of India, : [1971]3SCR9 . In our opinion, the contention is wholly unsound. The amendment affects no fundamental right, but only the conditions upon which the High Court may certify a case for appeal. If the right of appeal to the Supreme Court, be strictly a right at all, it certainly is not a fundamental right. Nor was it claimed to be such. Moreover, 1. C. Golak Nath and others v. State of Punjab and another : [1967]2SCR762 , is now overruled by the majority decision of the Supreme Court in Civil Writ No. 135 of 1970 entitled His Holiness Kesavananda Bharatu Sripadaga Ivara v. State of Kerala and Another decided on 24-4-1973, and it has been held that Parliament is vested with power to amend even Part Iii of the Constitution. We must, thereforee, consider whether the petitioners are entitled to a certificate under the new Article 133(1).

(8) An appeal under that Article lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if it certifies :-

'(A)that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.'

(9) Some differences between the new Article and the old are worth observing. The detailed reasons for the same are to be found in the Forty-Fourth and Forty-Fifth Reports of the Law Commission. As the Statement of Objects and Reasons shows, the Constitution (Thirtieth Amendment) Act 1972 seeks to give effect to the recommendations made therein. It is apparent that the valuation tests contained in Clauses (a) and (b) of the original Article 133(1) have been jettisoned. This displays a total shift to qualitative considerations, in contrast to the monetary, in the matter of granting a certificate. The amount or value of the subject matter or the property involved can no longer secure the right to appeal, and the petitioners cannot have it on those grounds.

(10) In its Forty-Fourth Report, the amended Article 133(1) proposed by the Law Commission was a verbatim reproduction of the previous Article 133(l)(c). As before, the test was to be that 'the case is a fit one for appeal to the Supreme Court.' In support of restricting the right of appeal to such cases only, it was reasoned that Judges of the High Court 'are more familiar with conditions in their States, and it is reasonable to think that they are, generally speaking, more competent than any outsider to judge matters concerning that State. It is, thereforee, proper that all ordinary litigation should end in the High Court, and only exceptional circumstances should justify recourse to the Supreme Court.' The Commission expressed the opinion that the Supreme Court 'should be troubled only if the High Court finds itself in great difficulty in deciding a case and the question of law is of great importance.'

(11) The phrases 'fit one for appeal' and 'substantial question of law occurred in the original Article 133(1) and its forbears. A scrutiny of the meaning ascribed to these phrases by judicial interpretation over the last hundred years was made in the Forty-Fifth Report. It transpires that 'substantial' and 'fit' had, in legal parlance, become tautological and conveyed the same idea: the importance of the question involved, that, probably, accounts for the absence of the word 'fit' in the new Article. After careful consideration the Law Commission recommended 'one more limitation' to the right of appeal, that: 'the question of law must be of a nature or magnitude which justifies recourse to the highest judicial organ of the country.' The Article as re-drafted in the Forty-Fifth Report is exactly as enacted. Clause (l)(b) represents that additional barrier. Except for this, the Forty-Fifth Report agreed with the thinking in the Forty-Fourth.

(12) Untrammelled by authority, how does one approach the restructured new Article Both clauses (a) and (b) describe the properties of a 'question'. Those are what the High Court certifies. So, first, the question must be isolated and identified. Having done so, the High Court must consider whether it is.

(1)a substantial question of law. (2) of general importance and (3) needs to be decided by the Supreme Court.

(13) As a matter of construction, the word 'substantial,' in the context, must mean something other than 'general importance' to avoid attributing superfluity to the legislature. In its ordinary sense 'substantial,' according to the Concise Oxford Dictionary, means 'having substance; actually existing; not illusory; not flimsy.' There seems to be no reason to suppose that this word has not been used in its ordinary sense in the new Article. Hitherto, by judicial interpretation, it was doing duty also for 'general importance.'. That it is not now required to do, and the cases which have gone before only show what the word is capable of. but, it seems to us, are now, irrelevant. Understood in this way, the word 'substantial' requires the High Court to weigh the merits of the question to see if it has substance and is not illusory or flimsy. If it be found to have substance, the High Court must then ascertain whether it is of 'general importance'. So far as that is concerned the earlier cases will remain in point.

(14) Although under clause (b) of the new Article the High Court has to form the opinion, the 'need' must be of the 'question', not the High Court. A degree of objectivity is thus implied. When can it be said that a question 'needs to be decided' by the Supreme Court The answer which springs to mind is when it is extraordinarily difficult. The choice of the word 'need' imports an element of necessity or compulsion. No one would suggest that simple questions or those of not more than usual complexity 'need' to be decided by the Supreme Court. The difficulty may arise from the 'nature or magnitude' of the question. A conflict of opinion amongst the High Courts may be evidence of the difficulty. There may be other circumstances which lead to that conclusion. Neverthless, in our opinion, ultimately the High Court must find that the question is one of extraordinary diffi- culty.

(15) All the requirements stated in the new Article converge to this that the High Court should certify a question only if it has some merit, is of general importance and is extraordinarily difficult to decide. Remembering the role of the Supreme Court, these arc the very considerations which ought to prevail. The only question of law which can be said to arise from the sentence in our judgment by which the petitioners are aggrieved, is whether we were mistaken in holding that, in view of Article 50 of the Delhi Education Code, we would not be justified in ordering restoration of the grant-in-aid. We have already expressed our views on the merits of that point in this as well as our earlier judgment. The principles on which mandamus is granted are well settled. Even if we have not applied them correctly, no question of general importance arises. And, certainly, the question raised is not of extraordinary difficulty. For these reasons we dismiss this application, but in the circumstances will leave the parties to bear their own costs.


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