Hazi Mohammad Tafiuddin v. STATE OF WEST BENGAL — 1979 DIGILAW 372 (CAL)

JUDGMENT 1. THIS Rule was obtained without any interim order on the 28th January, 1976 and even though the same was made ready as regards service on 26th May, 1977, there has neither been any opposition by the Respondents nor any appearance entered by or on their behalf. 2. THE Rule is directed against two orders in Annexure-D and G. The order in Annexure-D is dated 2nd February, 1973 and is a resolution reconstituting the West Bengal Madrasha Education Board (hereinafter referred to as the said Board) and the order in Annexure G is a proceeding of the said Board dated 18th December, 1975, whereby they have not recognized the Dwiporpar Sifatulla Senior Madrasha (hereinafter referred to as the said Madrasha), of which the petitioner Nos 1, 2 and 3 are the President, Vice President and the Secretary and petitioner Nos. 4 to 11 are the members of the Managing Committee. It is the case of the petitioners that they are members of the Managing committee of the said Madrasha, which was established for the purpose of teaching and training boys and girls of the locality, within the sub-division of tufangang, District-Coochbehar in Islamic culture and religion. They have stated that the said Madrasha was started long before purely on private initiative of the local Muslims and the land on which the said Madrasha is situate belong to the said Madrasha and that apart, the said Madrasha have other lands, obtained through bonafide gifts and donations. 3. IT has been stated that Madrasha education in Bengal, is a very old system and the Calcutta Madrasha, which is one of the oldest institutions for imparting education in Arabic, Parsian and other languages, as well as for training students in Islamic culture and religion in general, was started in or about the year 1780 and the same is continuing even now with its high tradition and heritage. The petitioners have stated that before the partition of Bengal, a board known as Board of Control Examination, Bengal, was entrusted with the functions of the holding, controlling, regulating and guiding the examinations, held in the languages as mentioned above and for providing the curricular and standard there for. It has also been stated that different Madrashas functioning at relevant time, were required and obliged to abide by the terms of the Central Board as mentioned above. 4. It has also been stated that different Madrashas functioning at relevant time, were required and obliged to abide by the terms of the Central Board as mentioned above. 4. IT is the case of the petitioners that after partition of Bengal, in or about 1948, for the purposes as afore said, West Bengal Madrasha Education Board was set up at Hooghly Madrasha in the District of Hooghly and subsequently, the office of the same was transferred to Calcutta and there for, the Board as mentioned above was constituted and re-constituted from time to time by resolutions or orders passed to that effect and adopted by the Government of West Bengal. It appears from the statements in the petition that there are three types of Madrasha viz., High Madrasha, Junior Madrasha and Senior Madrasha. These Madrasbas, according to the petitioners, come within the domain of the West Bengal madrasha Education Board and the said Madrasha, of which they are members, is a traditional Madrasha and therein the students are taught up to Alim standards, which is equivalent to School Final or Matriculation Examination. It appears that after Alim, in order to be qualified further in Islamic languages and culture, one has to get through Fazil Examination, which is equivalent to Graduation and still after that, one may further qualify himself by getting through the F. M. Examination which is equivalent to Masters Degree. The petitioners have stated than in 1975 a special permission was given by the West Bengal Madrasha Education Board to the said Madrasha for the purpose of sending up candidates for alim Examination, held in 1975. Similarly, necessary permission was granted for the year 1976. It is the case of the petitioners that the success in such examinations by the candidate as sent by the said Board, was of considerable nature. 5. THE petitioners have stated that in or about 1971, the said Madrasha applied to the said Board for necessary reorganization and thereafter, on or about 27th February, 1973, the Assistant Registrar-cum-Inspector of Madrasha held an inspection of the same and submitted his report. It has been stated that by the said report, the case of the said Madrasha, for reorganization was highly recommended and therein it has also been recorded that the said Madrasha was the only senior Madrasha in the sub-division of Tufangung, Coochbehar. It has been stated that by the said report, the case of the said Madrasha, for reorganization was highly recommended and therein it has also been recorded that the said Madrasha was the only senior Madrasha in the sub-division of Tufangung, Coochbehar. It has been alleged that on 17th December, 1973, in a meeting of the District Advisory Committee of Secondary Education, the Committee duly recommended the case of the said Madrasha, for reorganization and by resolution dated 2nd February, 1973 passed by the Government of West Bengal as in Annexure D, the said Board was reconstituted and on the basis of such re-constitution, the power of the State Government in the matter of Madrasha education in general and recognition or de-recognition of Madrasha, have been vested with the said Board as reconstituted. This reconstitution by the Government of West Bengal, has been claimed by the petitioners to be void, unauthorised, improper and irregular apart from being contrary to the powers under Article 154 of the Constitution of India. This apart, the petitioners have claimed that the resolution constituting the said Board, has also purported to make inroads in the petitioners right to propagate Islamic culture and religion through the said Madrasha and as such is also violative of Article 25 of the Constitution of India. According to petitioners, by a letter of 12th September 1975 addressed to the secretary of the said Board, they duly followed up the matter of recognition of the said Madrasha. But unfortunately instead of granting such recognition, the same has been granted in favour of Krishnapur Balobari Seraji senior Madrasha, of which the Respondent Nos. 9 to 29 are members of the Managing Committee. This senior Madrasha according to the petitioners, was originally a Maktab and overnight the same was transferred into a senior Madrasha, with the deliberate intension of getting or earning the necessary recognition from the said Board. The order of recognition which has been impeached, as mentioned above is in Annexure-G and the petitioners have clailmed that even inspite of due representation by or from them, there has been no result and the senior Madrasha mentioned above, Is carrying on its function on the basis of recognition as mentioned above. 6. The order of recognition which has been impeached, as mentioned above is in Annexure-G and the petitioners have clailmed that even inspite of due representation by or from them, there has been no result and the senior Madrasha mentioned above, Is carrying on its function on the basis of recognition as mentioned above. 6. IN the case of In Re : S. K, Kasad AH 1975 C. H. N. 356 a point arose whether writ would like against the West Bengal Madrasha Education Board, on the basis of a challenge thrown by the Head Master of a junior Madrasha, on his termination of service by resolution of the concerned Managing Committee. It was contended on behalf of the petitioners there, that the said Board was a public body, set up by the Government and since the same was entrusted with the performance of certain public duties, so the same was an authority under Article 12 of the Constitution of India. On the basis of the arguments as advanced and on consideration of the determinations in the case of Electricity Board Rajasthan, v. Mohanlal A. I. R. 1967 B. C. 1957 and views as expressed therein as followed in the case of Sukdeb Singh v. Bhagat 1975 (1) S. C. C. 421 it has been observed that Madrasha Education Board, the reconstitution of which was directed in accordance with the resolution dated 2nd February, 1973 cannot under any circumstances be termed as State under Article 12 of the Constitution of India. It has also been held an that case that it is not proper to hold that 'the said Board is a statutory body because in Rule 7 of the Rules for Management of Recognized Non-Government Institution (aided and non-aided) 1969, it has been provided that the members of the Teaching Staff of Madrasha, shall elect two members from amongst them to the committee of the Management of the Madrasha. In view of these determinations and since it is now the law that no writ would go or lie against such Board or a Madrasha, Mr. Motilal appearing in support of the Rule restricted his arguments basing on the provisions of Article 154 of the Constitution of India. In view of these determinations and since it is now the law that no writ would go or lie against such Board or a Madrasha, Mr. Motilal appearing in support of the Rule restricted his arguments basing on the provisions of Article 154 of the Constitution of India. It was contended by him that if the reconstitution of the said Board as made, was not possible or permissible, then the order in Annexure D cannot be sustained and subsequently the order of recognition of the above mentioned senior Madrasha as mentioned in Annexure-G, was improper and an that basis the Respondent Nos. 7 to 18 (a) Viz., the members of the Managing Committee of the concerned senior Madrasha and be also the said Board would not be entitled to hold their offices. According to him the holding of the offices by the above mentioned" respondents being thus would be without any authority and they should the removed by the issue of writ of quo Warranto. It was contended by Mr. Matilal, that the power to have the Madrasha education administered, at all material times lay with the Government of West Bengal and such power being executive functions could not be delegated to a private body as in the instant case, under Article 154 which deals with the executive powers of the State. The expression "executive power" would include quasi judicial powers vested in the State Government, by statute. So the delegation made to said Board by the State Government, in terms of the observations in the case of Gullapally Nageswar Rao v. Andhra Pradesh State Road Transport, Corporation AIR 1969 SC 308, was improper and such power could not be exercised by some other subordinates to the Governor and such steps if taken would be unconstitutional. It is also true that the executive power of the Governor cannot be so exercised, as observed in the case of State of U. P. v. Babu Ram, (1961 ). 2 SCR 679 to override the provisions of the Constitution and when the executive power is conferred upon another officer or authority by a statute, the source of such power is entirely statutory and must be exercised strictly in conformity with the conditions and limitations imposed by the statute. 2 SCR 679 to override the provisions of the Constitution and when the executive power is conferred upon another officer or authority by a statute, the source of such power is entirely statutory and must be exercised strictly in conformity with the conditions and limitations imposed by the statute. Such executive power, under Article 154 (2), may be conferred by law on authorities other than the Governor and furthermore such executive power is the residuary power of the State, which means the Governor of the State and excludes the judicial and legislative powers. It appears that a. Government order passed in the exercise of executive power cannot be equated to a statutory enactment and hence, a Mandamus cannot go for the enforcement of a public duty imposed by a Government Notification or Order passed in the executive capacity of the government. In a determination by the Andhra Pradesh High Court in ILR (1970) AP 1080. It has been specifically observed that : "thus the executive power today consists of not only administrative power i. e., the execution of the laws and the administration of the Government, but also consists of legislative and judicial power within of course the limited field. In addition to the above, social and economic functions have also entered into the lists. What must follow is that executive functions are incapable of comprehensive definition for they are merely the residue of the functions of Government after legislative and judicial functions have been taken away. It comprises both the determination of policy as well as carrying into execution. " It is also true that exhaustive definition of "executive power" is not possible and ordinarily, as observed in the case of Javentilal v. Rana AIR 1964 SC 648 , the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away, subject of course as observed in the case of ram Jawaiji v. State of Punjab, (1956) 2 SCR 225, to the Constitution or of any law. The executive function comprises, as mentioned in the above mentioned Punjab case, both the determination of the policy as well as carrying it into execution, the initiation of legislative the maintenance of order the formation of social and economic welfare and the carrying on or supervision of the general administration of the states. 7. The executive function comprises, as mentioned in the above mentioned Punjab case, both the determination of the policy as well as carrying it into execution, the initiation of legislative the maintenance of order the formation of social and economic welfare and the carrying on or supervision of the general administration of the states. 7. ARTICLE 154 corresponds to section 49 of the Government of India Act, 1935 and under that Act, It has been held in the case of Bhagawan Das v. The King, A.I.R. 1949 P.O. 263 that it is a part of the executive authority of the province to make appointments to the post of Public Prosecutor and the executive authority of the province being vested by section 49 of the Government of India Act, in the Governor he is entitled to appoint the advocate General, a Public Prosecutor under section 492 of the Criminal Procedure code and in the case of J. M. Lall v. Secrete dry of State A.I.R. 1944 Lahore 240, it has earlier been observed that the field of action of a province would include control and officers serving in the province even through any of such officers might belong to the Indian civil Service. The above principles in my view, would also apply to the interpretation of executive power under article 154. The power to constitute or re-constitute District, Taluks or Villages for the purposes of administration have been found in the Andhra Pradesh Case as mentioned above, to be executive power and so also the functions performed by the Governor, in the matter of trade or business intended to be carried on by the State Government as observed in the case of Lajpat Rai Mato v. Governor of Hariyana A. I. R. 1971 p and H 113, under a State owned Corporation. In terms of Ram Jawayis case, in the exercise of its executive power, therefore, a Government may do any act provided (1) the same is not an act assigned by the Constitution to any other authority or body such as the legislative or the Judiciary or the public Service Commission, (2) the same is do not encroach upon or other wise infringe the legal rights of an individual. 8. 8. IN terms of the determinations in S. K. Kasad Ali's case (Supra), the said Board is not a statutory body and not an authority under Article 12 of the Constitution of India. To me also it appears to be so and in fact no contrary view is possible, as there is no evidence establishing the character of the said Board otherwise. So, in view of the arguments as advanced by Mr. Motilal and following the principles as enunciated by the decisions as mentioned above, there is no other way out but to hold that the executive power under Article 154 could not have been delegated or vested to the said Board, as directed to be constituted. Thus, the constitution of the said Board, was invalid and unauthorised and as a consequence thereof the recognition of the said senior Madrasha, was also void, improper and without jurisdiction and as such, the members of the managing committee of the same could not claim to have the right or authority to hold their offices. This view also applies in respect of the members of constituents of the said Board. But, the position of course would have been different, if the said Board was a statutory body or could be brought within the execeptions as mentioned above. It should be noted that the said Board as constituted in February, 1973 and this Rule was obtained on 20th January, 1976 and on being asked, about the delay Mr. Matilal submitted that since the petitioners were finally aggrieved by the ultimate grant of recognition to the said senior Madrasha on 18th December, 1975 there has been no undue delay or any laches. Such explanation, in the absence of any counter statement appears to be possible and appropriate. 9. SO, we shall have to consider now and that too in view of the findings as above as to what should be the effective relief available to the petitioners. While deciding such point the prayers in the petition and how far they are available, will have to be considered. The petitioners have firstly prayed for the issue of a writ of certiorari for quashing the impugned orders in annexures 'd' and 'g' as mentioned above. While deciding such point the prayers in the petition and how far they are available, will have to be considered. The petitioners have firstly prayed for the issue of a writ of certiorari for quashing the impugned orders in annexures 'd' and 'g' as mentioned above. They have secondly, prayed for a mandate on the relevant authorities, who are Respondents in the Rule to cancel, set aside rescind or withdraw the resolutions in those Annexure and not to give effect to them and thirdly for the issue of a Writ of quo-Warranto, removing Respondent No. 7 to 18 (a) and so also the Respondent no. 4 from their offices. 10. IN terms of the determinations in the case of Hamid Hasan Nomani v. Banwarilal Roy and Others, AIR 1947 p. C. 90 an information in the nature of quo warranto is the modern from of the obsolete writ of quo warranto, which lay against a peon, who claimed or usurped in office franchise or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. It has also been observed to be a remedy to try the Civil right to a public office. In view of the determinations in the case of University of Mysore v. Govinda Rao, air 1965 SC 491 the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against statutory provisions or statutes, it also projects a subject from being deprived or public office, to which he may have a right. As observed in the case of statesman (P) Ltd. v. H. R. Deb, AIR 1968 SC 1495 the High Court in a proceeding for quo Warranto should be also in its pronouncement unless there is a case of infringement of law. A Writ of quo Warranto is not the same as a Writ of Certiorari, or Prohibition or Mandamus and in a such a proceeding for quo warranto, it is not necessary for the applicant to establish that he has been prejudicially affected by any wrongful act of public nature or that his fundamental right. is infringed or that he is denied any legal right or that any legal duty is owed to him. is infringed or that he is denied any legal right or that any legal duty is owed to him. The scope of a proceeding for quo warranto is very limited and it is only for the determination, whether the appointment of the Respondent is by a proper authority and in accordance with law, if there is some express statutory provision. The High Court's power of interference in a proceeding for quo warranto is also limited and it cannot act as an Appellate authority. Quo warranto, in terms of the determination in the case of Bhaimlal Chunilal v. State of Bombay, AIR 1954 Bom. 116 is a remedy given in law at the discretion of the Court and is not a proceeding or a writ of course. The High Court can in a proceeding for quo warranto, as observed in the case of Lalit Mohan Das v. Biswanath Ghosh AIR 1952 Cal. 868 , issue an order not only prohibiting an officer from acting in an office to which he is not entitled, but can also declare the Office to be vacant. As observed in Hamid Hasans case (Supra) information in the nature of quo warranto is in nature of a Civil proceedings and such writ can be issued when a post created under or by a statute or a public office, is usurped wrongly, illegally or without any authority. The tests of public office, as observed in the case of Sashi Bhusan Ray v. Pramatha Nath Bandopadhaya 70 CWN 892, are whether to the duties of office are of public nature and whether it is a substantive office under a statute. It has been held and observed in the case of Amarendra Chandra Aich v. Narendra Kumar Basu 56 CWN 449, that a writ of quo warranto will not be available in respect of an office of private nature. 11. It has been held and observed in the case of Amarendra Chandra Aich v. Narendra Kumar Basu 56 CWN 449, that a writ of quo warranto will not be available in respect of an office of private nature. 11. THUS, in terms of the determinations an the case of University of Mysore v. Govinda (Supra) the first and foremost criterian for the issue of a writ of quo warranto should be that the office must be public and pursuant to the determinations in the case of Shyabudinsab Mohidinsate Akki v. Gadaj Belgeri Municipal Borough AIR 1975 SC 314, a proceeding for quo warranto will not be in respect of office of a private charitable institution or of a private association and the test of a public office is whether the duties of the office are public nature. On the basis of the determinations as mentioned above, it can also be deduced that the office must be substantive in character and must be, as mentioned hereinbefore created by statute or by Constitution itself. So neither the statutory nor constitutional character being satisfied in the instant case is so far the offices of Respondent Nos. 4 or 7 of 18 (a), I am of the view that even inspite of the determinations on merit, the petitioners would not be entitled to the issue of a writ of quo warranto. 12. IN order to succeed in obtaining a writ or an order in the nature of Mandamus, which is the second prayer the petitioners must "establish that he has a legal right to the performance by the opposite party of legal duty imposed by a statute and such right must exist at the date of the petition. A mandamus will not issue if the duty required to be performed is discretionary. A mandamus will also not issue to compel the performance of anything which an authority has the power to do unless the power becomes coupled with a duty. " it is not all wrong which can be cured by a writ of Mandamus. Mandamus literally means a command. It is a demand for some activity on the part of the body or persons to whom it is addressed. " it is not all wrong which can be cured by a writ of Mandamus. Mandamus literally means a command. It is a demand for some activity on the part of the body or persons to whom it is addressed. In view of the character of entitlement and more particularly when the petitioners have a legal right to the performance of duty or obligation by the authority concerned in terms of Article 154, which in my view has not been duly discharged in the formation of the said Board or delegation of powers to the same, the same being neither a statutory body nor a body or authority under the Constitution of India, the petitioners can claim the issue of a Mandamus, requiring the notifications as impeached not to be given effect to. Thus, the second prayer of the petitioners should succeed. The third prayer of the petitioners, is for the issue of a writ of or a writ in the nature of Certiorari, Certiorari lies against Judicial and quasi judcial authorities and goes against the record. Such writ would be available to quash or remove proceeding on the ground of want or excess of jurisdiction or of the order being bad on its face. In view of the above, this prayer for a writ of Certiorari may not also be strictly available in the facts of the case. 13. THUS, the second point of the petitioners succeed and not the others : and as such, the Rule is made absolute to that extent. Let appropriate writ be issued in terms of prayer (b)only. There would be no order for cost. 14. THIS order will not prejudice the authorities concerned from passing an order or making a determination to such authorities as are required under article 154 of the Constitution of India, if they are so advised or intended. Rule made absolute, No costs.