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Vinay Saihgal and ors. Vs. State of Himachal Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 202 of 1983
Judge
Reported inAIR1984HP35
ActsHimachal Pradesh Board of School Education Act, 1968 - Sections 3(1), 3(2), 5, 27 and 31; ;Himachal Pradesh General Clauses Act, 1969 - Sections 13 and 14
AppellantVinay Saihgal and ors.
RespondentState of Himachal Pradesh and anr.
Appellant Advocate Chhabil Dass,; Bhawani Singh and; Dev Darshan Sood,
Respondent Advocate P.N. Nag, Adv. General,; L.S. Panta, Deputy Adv. General and;
DispositionPetition dismissed
Cases ReferredReddy v. State of Andhra Pradesh.
Excerpt:
- v.d. misra, c.j.1. the government has shifted the headquarters of the himachal pradesh board of school education (the board) from shimla to dharamsala in public interest. some of the employees of the board, the present petitioners, are up in arms. they challenge the competency of the government to order the shifting of the headquarters. they point out that even one of the members of the board. shri keval ram chauhan, members, legislative assembly, is opposed to this shifting. they rely on an undated letter (annexure-pd) written by him to the chairman of the board asking the latter to find the views of the board before the decision is implemented by the board. we may straightway point out that this letter is not on the records of the 'board since it was a personal letter written to.....
Judgment:

V.D. Misra, C.J.

1. The Government has shifted the headquarters of the Himachal pradesh Board of School Education (the Board) from Shimla to Dharamsala in public interest. Some of the employees of the Board, the present petitioners, are up in arms. They challenge the competency of the Government to order the shifting of the headquarters. They point out that even one of the members of the Board. Shri Keval Ram Chauhan, Members, Legislative Assembly, is opposed to this shifting. They rely on an undated letter (Annexure-PD) written by him to the Chairman of the Board asking the latter to find the views of the Board before the decision is implemented by the Board. We may straightway point out that this letter is not on the records of the 'Board since it was a personal letter written to theChairman of the Board, Shri Hardayal.

It may also be pointed out that this letter in original as well as its copy was handed over by Shri Kewal Ram Chauhan to Shri Gita Ram, General Secretary of the Employees Association of the Board, to be handed over to the Chairman. It is stated to have been received by the Chairman on 24th May, 1983. However, neither Shri Chauhan nor any other member of the Board has come forward to challenge the decision.

2. Mr. Chhabil Dass, learned counsel for the petitionary, contends that the Government could not act under. Section 5 of the Act since this power could be exercised only once. It is submitted that under Section 3 (2) the Board had the power to shift the headquarters. It is stated that the Government could have acted under Sub-section (4) of Section 11 of the Act but then it would have become incumbent upon the Government to submit a report to be laid on the table of the Legislative Assembly under Sub-section (6) of Section 11. In order to appreciate the contentions of the learned counsel, it is necessary to refer to various Sections of the Act.

3. The Board was established under the Himachal pradesh Board of School Education Act (the Act). Section 3 deals with the incorporation of the Board. Sub-section (1) enables the Government to establish by a notification in the Official Gazette the Board with effect from such date as may be specified in the notification. Since the contentions centre around this section, it is better if we reproduce it in full:--

'3. Incorporation of the Board.--(1) The Government shall establish, by notification in the Official Gazette, a Board of School Education for Himachal Pradesh with effect from such date as may be specified in the notification.

2. The Board shall be a body corporate by the name of the Board of School Education for Himachal Pradesh and shall have perpetual succession and a common seal with power to acquire and hold property both movable and immovable, and subject to the provisions made under this Act to transfer any property held by it and to contract and to do all other things necessary for the purposes of its constitution and may sue or be sued in its corporate name.'

Section 4 relates to the composition of the Board. The Board is to consist of the Chairman to be nominated by the Government under Section 18, Director of Education as the ex-officio member, threepersons elected by the Himachal PradeshLegislative Assembly from amongst itsmembers, the members to be nominatedby the Government as detailed in Clause (III)of Sub-section (1), and a member to be co-opted by the Board for his expert andwide knowledge of school education.Section 5 refers to the headquarters ofthe Board. It reads:--

'The Board shall have Headquarters at a place to be notified by the Government in the Official Gazette.'

Section 6 prescribes the term of office of the members and the method of filling of casual vacancies. Except the ex-officio member, the term of office of other members is ordinarily three years. The members of the Legislative Assembly are to continue as the members of the Board unless they cease to be members of the Legislative Assembly which elected them. The outgoing members continue in office until the election, nomination, or co-option of the successors as notified in the official Gazette unless the Government otherwise directs. Sub-section (4) empowers the Government to terminate the term of office of any nominated member if the Government is of the opinion that his continuance in the office is not in the interest of the Board. Section 7 prescribes the quorum of at least nine members for a meeting of the Board. The proceedings of the Board or a Committee thereof are not to become invalid merely by existence of a vacancy among its members or by reason of a defect in its constitution or an irregularity in procedure not affecting the merits of the case (Section 8). Section 9 debars a member to take part in discussion or vote on any matter in which he has any personal or pecuniary interest. The powers and functions of the Board are laid down in detail under Section 10. One of such powers and functions is to: 'place before the Government the views of the Board on any matter with which it is concerned' (Sub-section 10). The Board empowered, to 'do all such other acts and things ancillary to any of the purposes specified above or for the purpose of carrying into effect the provisions of this Act' (Sub-section 18), Section 11 lays down the powers of the Government, It empowers the Government to address the Board with reference to anything eon-ducted or done by the Board and to communicate to the Board its views on any matter with which the Board is concerned. The Board is duty bound to report to the Government the action taken upon the communication received and furnish an explanation if it fails to take action. After considering the explanation the Government has the power to: 'issue such directions, consistent with this Act, 'as it may think fit and the Board shall comply with such directions.' Sub-section (4) lays down 'In any emergency which in the opinion of the Government, requires that an immediate action should be taken, the Government may take such action, consistent with this Act, as it deems necessary without previous consultation with the Board and shall forthwith inform the Board thereof.' Sub-section (5) empowers the Government to suspend the execution of any resolution or order of the Board and prohibit the doing of any act ordered or purporting to be ordered, to be done fay the Board, if it finds the resolution or order or act in excess of the powers conferred by this Act upon the Board. Sub-section (6) enjoins upon the Government to submit a report to be laid on the table of the Legislative Assembly at the earliest opportunity where the Government has taken action under Sub-sections (3), (4) and (5) along with the reasons for taking such actions. Sections 12, 13 and 14 relate to the constitution to the Board fund custody and investment of the Board fund and application of the Board fund, whereas Section l5 relates to the audit of the accounts of the Board. Section 16 prescribes the mode of entering into a contract whereas Section 17 talks about the officers of the Board. In this case we are not concerned with these provisions. The next relevant provision for our purposes is Section 19 which lays down the powers and duties of the Chairman. The Chairman is to be the administrative head of the Board and it is his duty to see that the Act and the regulation are faithfully complied with. Under Sub-section (2) of this section the Chairman is required: 'at prescribed intervals or on receipt of a requisition signed fey not less than one-third of the total number of members of the Board and stating the business to be brought before the Board call a meeting of the Board in the prescribed manner.' Sub-section (3) takes care of the emergency. It empowers the Chairman to take immediate action as he deems necessary in an emergency arising out of the administrative business of the Board requiring immediate action. He is required to reporthis actions to the Board at its next meeting. Section 20 makes the Director of Education as ex-officio Vice-Chairman of the Board. Section 21 prescribes the powers and duties of the Vice-Chairman whereas Section 22 lays down the powers and duties of the Secretary. The Secretary, is to be appointed by the Government. Under Section 23 it is the Government which appoints Deputy Secretaries and Assistant Secretaries of the Board. The Board can employ only other officers and servants. The Board is required to constitute the committees referred to in Section 24 where as Section 25 requires the Board to consider the reports of the committees on matters, delegated to any committee by regulation before exercising its powers on that matter. Section 26 enables the Board to make regulations for the purposes of carrying into effect the provisions of the Act. Section 27 relates to the first regulation of the Board. It reads :--

'(1) The first Regulation shall , be made by the Government and they snail be deemed to have been made by the Board and continue in force until altered or modified by the Board.

(2) The Regulations made under Sub-section (1) shall not take effect until they have been published in the Official Gazette.'

4. The next relevant provision for our purposes is the last section. Section 31 of the Act. It empowers the Government to remove difficulties, it is in the following terms;--

'If any difficulty arises as to the first constitution of the Board or otherwise in giving effect to the provisions of this Act, the Government, as occasion may require, may, by order do anything which appears to it necessary for the purpose of removing the difficulty.'

5. A bare reading of the Act shows that the legislature while creating the Board gave overall powers to the Government. The Board has been given some independence but it cannot be said to be absolute.

6. It is submitted by Mr. Chhabil Dass that the power of establishing the Board under. Section 3 (1) includes the power to fix its headquarters. Mr. Nag the learned Advocate General, does not dispute it We have no doubt that the power to establish 'the Board will include the power to fix its headquarters. After all a body corporate has to have a headquarter in the absence of which itcannot be said to have been established. All the necessary components of the Board except its place of working have been provided by the Act. For example, the name of the Board, the composition of the Board, terms of office of its members, powers of the Board as well as of the Government and provisions for other incidental matters have been made. The power left with the Government to 'establish' the Board was to fix a date of its establishment and to fix the headquarters of the Board. Unless the head-quarters were fixed, it could not be said that the Board was established,

7. The Supreme Court in Board of Trustees. Ayurvedic and Unani Tibia College, Delhi v. State of Delhi. AIR 1962 SC 458, while considering the validity of Tibia College Act, had an occasion to refer to the essential features of a Corporation, It was observed (at p. 464)) :--

'Thus, it has been held that a name is essential to a corporation: that a corporation aggregate can, as a general rule, only act or express its will by deed under its common seal, that at the present day in England a corporation is created by one or other of two methods, namely, by Royal Charter of incorporation from the Crown or by the authority or parliament that is to say, by or by virtue of statute. There is authority of long standing for saying that the essence of a corporation consists in (1) lawful authority of incorporation. (2) the persons to be incorporated. (3) a name by which the persons are incorporated. , (4) a Place, and (5) words sufficient in law to show incorporation. No particular words are necessary for the creation of a corporation; any expression showing an intention to incorporate will be sufficient.'

8. Sub-section (2) of Section 3 shows that the Board is a body corporate by the name of the Board of School Education for Himachal Pradesh. It has perpetual succession and a common seal. Therefore, the only essential feature of the corporate body which was left to be decided by the Government was the place. It could be decided under Sub-section (1) of Section 3 because the power given to the Government to establish the Board included the power to do incidental things necessary for its establishment. The following two Supreme Court decisions are an authority for this proposition of law.

9. In Central Bank of India Ltd. v. P. S. Rajagopalan, AIR 1964 SC 743, the Supreme Court approved this observation of Maxwell on Interpretation of Statutes:--

'Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.'

10. Again in Asst. Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., AIR 1972 SC 2563, the Court observed (at p. 2573) :--

'It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied.'

11. However, the Government having exercised the power of establishment in terms of Sub-section (1) of Section 3, if cannot be said that this power can be exercised again. There can be no question of establishing the Board again. We cannot therefore, agree with Mr. Nag that the Government had the right to exercise the power of establishment again and again by notifying the headquarters of the Board.

12. The next question for decision is whether the power given to the Government under Section 5 is transitory? Is it a surplusage? as submitted by Mr. Chhabil pass. Now the legislature could have fixed the place for the Board if it was so minded. However, it has left the discretion to the Government. There is nothing in the Act to show that this discretion could be exercised only once. If the intention of the legislature was to restrict the discretion of the Government, then there was no necessity of enacting Section 5 since under Section 3 (1), as already stated, the Government had been given the discretion of fixing, the headquarters of the Board. In our opinion Section 5 was neither a surplus age nor was enacted as a matter of abundant caution. On the other hand, it is reasonable to assume that it was left to the Government to decide about the headquarters of the Board from time to time depending on the public interest. After all the Circumstances may change and it may be deemed desirable by the Government to change the headquarters. We find that wherever the legislature intends to give only a transitory power or theinitial power to do a thing and which is not to be repeated, it expressly says so. Section 27 is the instance. It was expressly enacted that, the Government shall have the power to make the 'first Regulations' of the Board. We have already reproduced this section. The phraseology shows that this power could not be exercised again. If the intention of the legislature was similar while enacting Section 5. we see no reason why it was not couched in a somewhat similar language.

13. We may, at this stage, also notice Section 13 of the Himachal Pradesh General Clauses Act which reads:--

'Where, by any Himachal Pradesh Act any power is conferred on the State Government, then that power may be exercised from time to time as occasion requires.'

No doubt unlike Section 14 of the General Clauses Act the phrase 'unless a different intention appears' is missing but the words in which a power is couched may show a different intention. As already pointed out. Section 27 referred to above, is, an example. However, we see no reason to place any such restriction on the interpretation of Section 5 and to hold that the Government had no jurisdiction to exercise this power from time to time.

14. In Vasanlal Maganbhai Sanjan-wala v. State of Bombay, AIR 1961 SC 4, while interpreting Section 6 (2) of the Bombay Tenancy and Agricultural Lands Act (67 of 1948), empowering the Government to fix agricultural lands, the Court rejected the contention that this power could be used only once on the ground that the Section did not limit the power to be used once and Section 14 Of the Bombay General Clauses Act (similar to Section 13 of the Himachal Pradesh General Clauses Act) expressly provided that the power conferred on the Government may be exercised from time to time as the occasion requires. We have, therefore, no hesitation in holding that the power conferred on the Government under Section 5 can be used from time to time as the occasion requires.

15. The contention of Mr. Chhabil Dass that Sub-section (2) of Section 3 empowers the Board to fix its headquarters has no force and has to be rejected. The relevant part of this provision on which Mr. Chhabil Dass relies may be reproduced again;--

'The Board shall ** ** ** subject to the provisions made underthis Act, to transfer any property held by it and to contract and to do all other things necessary for the purposes of its constitution and may sue or be sued in its corporate name.'

The emphasis of Mr. Chhabil Dass is on the words which have been underlined by us. It is contended that the word 'constitution' relates to the constitution of the Board and therefore, means the power of fixing the headquarters. It is submitted that this word refers only to the headquarters of the Board nOW this power is obviously subject to the provisions which have been made under this Act. Section 5 vests exclusively the power of fixing the headquarters in the Government. We are, therefore, of the opinion that the word 'constitution' has been used in ordinary grammatical sense. The Concise Oxford Dictionary defines the word 'constitution' thus :--

'Act or mode of constituting; character of body as regards health, strength, etc.; mental character; mode in which State is organized: body of fundamental principles according to which a State or other organization is governed.'

In other words, the power given to the Board is with reference to the residuary matters for which no specific provision has been made and relates to the principles according to which it is governed.

16. It may be noticed that Section 31 gives the power to the Government to remove any difficulty which arises in giving effect to the provisions of the Act. This power is not meant to be exercised only at the time of the first constitution of the Board. The word 'or' makes it clear that the power to remove the difficulty can be exercised as the occasion may require whenever the difficulty arises in giving effect to the provisions of this Act. Even in view of this Section it cannot be said that the power has been given to the Board to fix its headquarters.

17. Mr. Chhabil pass has placed much reliance on a Division Bench judgment of Andhra Pradesh High Court in Rama-chandra Reddy v. State of Andhra Pradesh. AIR 1965 Andh Pra 40, in order to show that once a power has been exercised, it cannot be exercised again. We find that the case was decided on its own facts and has no relevance to the present case. In that case it was held that the power vested with the Government to issue a notification underSection 2 (b) of the, Andhra Pradesh Panchayat Samithis and Zilla Parishads Act (35 of 1959) does not include a power to cancel the notification because once a Panchayat Samithi is constituted for a block the Samithi becomes a body corporate and the area of it cannot be taken away or varied unless a power is conferred on the Government.

18. The locus standi of the present petitioners to maintain the present petition has been challenged. It is submitted that the petitioners, being the employees of the Board have, no right to challenge the notification of the Government shifting the headquarters of the Board from Simla to Dharamsala since no right of theirs is taken away. It has also been pointed out that no member of the Board, who could have raised any objection, has come forward to challenge the notification. Even the letter of Shri Kewal Ram Chauhan refers to the mode of the implementation of the decision taken by the Government and does not object to the decision itself. Since we have already held that the notification is valid, we need not decide the question of locus standi of the present petitioners.

19. The result is that the petition is dismissed.


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