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Amarendra Chandra Vs. Narendra Kumar Basu and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3185 of 1951
Judge
Reported inAIR1953Cal114,56CWN449
ActsConstitution of India - Article 226
AppellantAmarendra Chandra
RespondentNarendra Kumar Basu and ors.
Appellant AdvocateKalyan Kumar Bose, ;B. Das and ;Kamjit Mukherjee, Advs.
Respondent AdvocateBinayak Banerjee and ;Anil Kumar Das Gupta, Advs.
Cases ReferredR. v. St. Martin
Excerpt:
- .....on 14th may 1950 a managing committee of the school was constituted in accordance with the revised school code which it is said was framed by the calcutta university under the indian universities act (act viii (8) of 1904). it is alleged that the respondents have constituted themselves into a rival managing committee and have wrongfully obtained the approval of the university in terms of rule 5 of the revised school code although the conditions precedent which must exist before the university can validly grant its approval did not in fact exist,the petitioner challenges the rights of the respondents to be in office as members of the managing committee on the ground that the approval granted by the university has not been validly given in accordance with rule 6 of the revised school code......
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for a Writ in the nature of 'Quo Warranto' calling upon the respondents to exhibit the authority under which they are functioning and acting as the members of the Managing Committee of a school in South Calcutta known as the Chakra-beria High School and for an injunction restraining them from functioning as such.

2. The petitioner is the father and guardian of two students of the said Chakraberia School which is located at 93, Bakulbagan Road and at 23/1 Chakraberia Road, South Calcutta. It is alleged in the petition that at a meeting of the guardians of the students of the said school held on 14th May 1950 a Managing committee of the school was constituted in accordance with the Revised School Code which it is said was framed by the Calcutta University under the Indian Universities Act (Act VIII (8) of 1904). It is alleged that the respondents have constituted themselves into a rival Managing Committee and have wrongfully obtained the approval of the University in terms of Rule 5 of the Revised School Code although the conditions precedent which must exist before the University can validly grant its approval did not in fact exist,

The petitioner challenges the rights of the respondents to be in office as members of the Managing Committee on the ground that the approval granted by the University has not been validly given in accordance with Rule 6 of the Revised School Code. It appears that the Managing Committee constituted by the respondents was formed on the 3rd September 1950, the approval of the University was asked for on or about the 13th September 1950 and the University granted its approval on the 18th September 1950. It appears further that the Managing Committee of this school is constituted not according to the provisions of the Revised School Code but the members of the Managing Committee are elected by the General Committee of the South Suburban School, another well-known School in South-Calcutta, and the members of the Committee formed by the respondents were so elected by the General Committee of the South Suburban School.

3. Mr. Einayak Banerjee, the learned Advocate for the respondents has contended that the offices held by the respondents not being statutory offices nor being offices of a public nature this application for a writ of 'Quo Warranto' is not maintainable.

4. In Halsbury's Laws of England, Vol. 9, Paragraph 1374, page 805 it is pointed out that formerly the remedy of 'Quo Warranto' was confined to cases of usurpation upon the Crown directly but later cases have extended the remedy in respect of offices of a public and substantive nature which are created by or under a statute or under Charter granted by Crown. It is further pointed out that a Writ refused in respect of the office of a master of a hospital and free school, which institution was a private charitable foundation and the right of appointment to offices therein was in governors who were private and not public functionaries and it was immaterial that a Charter of Incorporation for the Institution had been granted by the Crown. The writ also does not lie for the purpose of trying the validity of an election to a fellowship of a college nor does it lie in respect of the office of a Surgeon or Physician of a hospital founded by private persons and afterwards incorporated by Act of Parliament, (Footnote (d), page 805) nor in respect of the office of a committeeman of the Licensed Victuallers' Association. -- 'Ex parte Abel Smith', (1863) 8 LT 458.

5. Reliance has been placed on behalf of the petitioner on the case of -- 'R. v. Guardians of St. Martin', (1851) 17 QB 149 to show that if the office is one in which the public has an interest, a writ will lie, no matter whether the office is created by Statute or not. In the case of -- 'Ashgar Ally v. Birendra Nath', 49 Cal WN 658 at p. 670, Gentle J. considered the case of -- 'R. v. St. Martin's Guardians' and referred to certain passages in the judgments of Lord Campbell C. J., Patterson J. and Erle J. to show what is meant by an office of a public nature. He came to the conclusion that the office of the Chief Engineer who was appointed under the provisions of the Calcutta Municipal Act which conferred power on the Calcutta Corporation to make appointments of some of its officers, satisfied the tests laid down in the case of -- 'R. v. St. Martin's Guardians' and so a Writ would lie in respect of the office of the Chief Engineer. Mr. Justice Gentle referred to certain other cases where the writ was issued but pointed out that the offices in the cases concerned were prescribed by statutes.

It may be pointed out that in the case of -- R. v. St. Martin's Guardians', the office in question was prescribed in the Act of Parliament though not actually created by the Statute. The Chakrabaria High School is a Private Institution which imparts education to students of that school and receives fees from the students for imparting such education. The Managing Committee of the school is not the creature of any Statute but it is constituted by the General Committee of the South Suburban School according to certain rules framed for the purpose of constituting such Committee. The rules have no statutory force but are domestic rules governing the internal affairs of the school. Even the Revised School Code, which does not appear to have any statutory force, has no application to the constitution of the Managing Committee of this school. It is true that a small section of the public viz., the students and their guardians are interested as such in the school but that does not bring the office of the members of the Managing Committee within the category of offices which can be described as offices of a public nature. It appears to me that the offices held by the respondents are not offices in respect of which a writ of Quo Warranto lies.

6. Mr. K.K. Basu, the learned Counsel for the petitioner contended that the respondents are not properly in office as the approval granted by the University is not in accordance with Rule 6 of the Revised School Code. It appearsto me that there is no substance in this contention. The respondents have been elected bythe General Committee of the South Suburban School and rightly or wrongly the University has approved of the Managing Committee composed of the respondents. If therehad been in fact no approval even then theelection of the respondents would not be rendered invalid, but only the acts of the Managing Committee might not have been recognisedby the University so long as approval was notactually granted. The Circular No. s/355/M.C, which is printed at page 30 of the Handbook containing the Revised School Code indicates that the granting of approval is not acondition precedent to the Managing Committee functioning as such. If the approval isgiven at a future date there is sufficient compliance with Rule 6 of the Code.

If the University had refused to grant its approval to this Managing Committee there might have been some force in the argument that the respondents had no right to be in office but when the fact remains that the University did grant its approval to this Committee but the approval turns out to be defective or invalid, I fail to see how it can be said that the respondents have no right to be in office. It appears to me that so long as the University does not refuse to approve of this Committee and pending such approval the respondents have every right to remain in office.

7. The whole attack of the petitioner is upon the validity of the approval granted by the University. The petitioner's case is that the University had no grounds or materials and could have no materials before it for judging whether the Committee composed of the respondents was efficiently discharging its duties or not as the Committee had only come into existence only a fortnight before the granting of approval. The University, which could have placed all materials to meet the case of the petitioner and could perhaps have satisfied the court that there were materials before it which justified it in granting the approval, has not been made a party. It may be that the University Authorities made enquiries and were satisfied that although the Committee had come into existence only a fortnight before the date of the approval, whatever acts were done by the Committee indicated that the Committee had discharged its duties efficiently. The object of the petition is really to get a declaration from the court that the approval of the University is invalid and in my view this application is not maintainable without the University being a party to it.

8 It was submitted by Mr. Banerjee that this is not a bona fide application but has been made at the instance of the members of the rival Committee who have been repeatedly frustrated in their attempts to get a hold on the management of the school after ousting the committee of the respondents. As there are not sufficient materials on record I do not express any opinion on this point.

9. In my view this petition must fail. The Rule is accordingly discharged. The petitioner must pay the costs of the present proceedings. Hearing fee is assessed at 3 gold mohurs.


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