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1960 DIGILAW 213 (PAT)

Ram Sharan Singh v. State Of Bihar

1960-12-07

KANHAIYA SINGH, V.RAMASWAMI

body1960
Judgment 1. In this case the petitioner Ram Sharan Singh is the Secretary of the Managing Committee of the Priyabarta High English School located in village Panchagachia in the district of Saharsa. The High School was at first held in the building of Raj Bahadur Priyabrat Narayan Singh, and in the year 1932 the school was shifted to the guest house of the Panchagachia estate. It appears that the heirs of Raj Bahadur Priyabrat Narayan Singh made an offer of a gift of about 5 bighas of land for constructing a permanent building for the school. On the 18th of January, 1957, the Managing Committee resolved to accept the offer subject to the condition that the heir would execute a registered deed of gift before the 25th of January, 1957, and further a sum of Rs. 5000 should be collected and deposited by opposite parties 14 and 15 in the School fund. The case of the petitioner is that the condition was not fulfilled. A rival offer was apparently made by the villagers of Panchgachia, who agreed to make a gift of about 9 bighas of land in another site for the purpose of the school buildings. The Managing Committee agreed to accept the offer of the villagers of Panchgachia and accordingly the villagers of Panchgachia executed three registered deeds of gift dated the 3rd August 1956, 27th August, 1956 and 31st August, 1956, with regard to 9 bighas and odd of land and villagers of Panchgachia also subscribed the sum of Rs. 3000 in cash for the purpose of the school, building. On the 23rd of March, 1957, the Managing Committee resolved that the school building should be constructed on the land gifted by the Panchgachia villagers. It appears that opposite party No. 14 made an application before the Deputy Director Of Education objecting to the construction of the school building on the site given by the Panchgachia villagers. An enquiry was made into the matter by the Education authorities and on the 14th of October, 1957, the Secretary of the Board of Secondary Education informed the petitioner that the President of the Board of Secondary Education has approved the construction of the school building On the site given by the Panchgachia villagers. A copy of the letter is Annexure E to the application. A copy of the letter is Annexure E to the application. But later on, on the 17th of November, 1959, the petitioner was informed by the Deputy Director of Secondary Education that the State Government have decided that the school building should be constructed on the land gifted by the ex-landlord of the Panchgachia estate. A copy of this letter is Annexure F to the application of the petitioners. 2. The case of the petitioners is that the order of the State Government conveyed in the letter of the Deputy Director of Education dated the 17th of November, 1959, is ultra vires and illegal and must be quashed by a writ in the nature of certiorari. 3. Cause has been shown by the learned Government Advocate on behalf of respondents Nos. 9, 11, 13, and 14 and by the learned Additional Government Pleader on behalf of respondents 1 to 7. 4. It is not necessary for the decision of this case to go into the question of the comparative suitability of the site offered by the ex-proprietor of the Panchgachia estate and of the site offered by the Panchgachia villagers. The only question to be determined is the question of legality of the order of the State Government dated the 17th of November, 1959 directing that the construction of the building should be made on the land donated by the ex-landlord of the Panchgachia estate under a deed of gift. In Dwarka Nath Tewari V/s. State of Bihar, AIR 1959 SC 249 it was held by the Supreme Court that Article 182 of the Bihar Education Code which provides for withdrawal or withholding of recognition in case the Managing Committee of a School does not carry out the directions of the Board of Secondary Education, had no greater sanction than an administrative order or rule, and was not based upon any statutory authority or other authority which could give it the force of law. After the decision of this case by the Supreme Court the Bihar Legislature enacted me Bihar High Schools (Control and Regulation of Administration) Act, 1960. (Bihar Act XIII of 1960) in order to place the matter of control and administration of high schools on a legal basis. Section 8 of this Act is in the following terms: "8. After the decision of this case by the Supreme Court the Bihar Legislature enacted me Bihar High Schools (Control and Regulation of Administration) Act, 1960. (Bihar Act XIII of 1960) in order to place the matter of control and administration of high schools on a legal basis. Section 8 of this Act is in the following terms: "8. Power to make rules: (1) State Government may, after previous publication and subject to the provisions of articles 29, 30 and 337 of the Constitution of India, make rules not inconsistent with this Act for carrying out the purposes of this Act. (2). Until the State Government makes rules under this section, the provisions contained in the Bihar Education Code, 7th Edition, as amended from time to time, and all resolutions and orders of the State Government or of 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 are in force on, the date of commencement of this Act, shall, in so far as they are not inconsistent with the provisions of this Act and the provisions of the Constitution of India relating to schools established and administered by Anglo-Indians and minorities based on religion or language, be deemed to be the rules made under this Act for the purposes of this Act. (3) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that, the rule should not be made, the rule shall thereafter have effect only in such modified form Or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule". It is manifest that Section 8 (2) of the Act gives legal force and authority to all the provisions contained in the Bihar Education Code as amended from time to time and all resolutions and orders of the State Government or of the Director of Pub-lie Instruction. Bihar, published in the extraordinary issue of the Bihar Gazette of the 23rd March, 1959. Section 9 of the Act is also important and is reproduced below: "(9) Validation of previous actions and orders. All actions taken and all orders made before the commencement of this Act in regard to high schools by the State Government or the Board of Secondary Education referred to in the" proviso to Sub-section (1) of Sec.3 and by any such Board constituted by the State Government at any time before the constitution of that Board shall, in so-far as they are not inconsistent with the provisions of the Constitution of India relating to schools established and administered by Anglo-Indians and minorities based on religion or language, be deemed to have been validly taken and made and they shall not be called in question on the ground that the said actions or orders were not taken or made, in accordance with any law". It was argued by the learned Government Advocate that the order of the State Government which is impeached in this case is validated because of the provisions of Section 9 of Bihar Act XIII of 1960. In our opinion, the argument is well founded and must be accepted as correct. It is manifest that Section 9 of the Act speaks of executive orders made before the commencement of the Act and expressly validates such executive orders made by the State Government in regard to high schools. It cannot be doubted that the State legislature is competent to pass such validating legislation. It is manifest that the legislation contained in Bihar Act XIII of 1960 is covered by entry No. 11 of the State List, which is in the following terms:- - "11. It cannot be doubted that the State legislature is competent to pass such validating legislation. It is manifest that the legislation contained in Bihar Act XIII of 1960 is covered by entry No. 11 of the State List, which is in the following terms:- - "11. Education including universities, subject to the provisions of entries 63, 64, 65 and 66 of list I and entry 25 of List III." It cannot be doubted that the power of the State legislature to promulgate legislation with regard to the subject-matter of entry No. 11 of the State List includes the ancillary or subsidiary power to validate doubtful executive action on the same subject. This view is borne out by the decision of the Federal Court in United Provinces V/s. Mt Atiqa Begum, AIR 1941 FC 16 where it was observed by the Chief Justice of the Federal Court that power of the legislature to legislate on a particular subject includes also by necessary implication the power to legislate for validating executive orders in respect of the subject. At page 26 of the report Gwyer, C. J. observed as follows.- "It is then necessary to inquire whether the impugned Act is an Act with respect to remission of rents, for if it is, it follows from what I have just said that it was within the competence of the Provincial Legislature to enact it. In my Opinion, it is such an Act, although it may also be an Act with respect to something else, that is to say, the validation of doubtful executive orders. It does not seem to me necessary to consider what the pith and substance of the Act is, to use a now familiar phrase; for that question does not arise, unless the Court is inquiring whether a particular Act falls within one Legislative List or another. In the present case, there is no suggestion of any competition between List I and List II, and if the Act does not fall within List II (since no one has suggested that it falls within list III), it can only be an Act with respect to a subject-matter which, bas been overlooked or forgotten, and no Legislature in India could deal with it until the Governor General had exercised his powers under Sec.104, Constitution Act. The validation of doubtful executive acts is not so unusual or extraordinary a thing that little surprise would be felt if Parliament had over-looked it, and it would take a great deal to persuade me that legislative power for the purpose has been denied to every Legislature, including the Central or Federal Legislature, in India. It is true that validation of executive orders or any entry even remotely analogous to it is not to be found in any of the three lists; but I am clear that legislation for that purpose must necessarily be regarded as subsidiary or ancillary to the power of legislating on the particular subjects in respect of which the executive orders may have been issued." 5. In view of this legal position, we hold that the legislation contained in Section 9 of Bihar Act XIII of 1960 is constitutionally valid and the Bihar Legislature is competent to enact such legislation because of the power contained in entry No. 11 of the State List. 6. For these reasons we hold that the order of the State Government communicated to the petitioner on the 17th of November 1959 which is Annexure F to the application, is not illegal. In our opinion, the petitioners have not made out any ground for the grant of a writ in this case. We accordingly dismiss this application. There will be no order as to costs.