1. Petition under Article 32 — Challenge to government takeover of school management and property — Dispute over headmaster's reinstatement — Reliance on administrative education code. (Para 1 , 2 , 3 )
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1958 Supreme(SC) 137
SUPREME COURT OF INDIA
S.R.Das, C.J.I. B.P.Sinha, K.N.Wanchoo, K.Subba Rao, N.H.Bhagwati, JJ.
Dwarka Nath Tewari
Versus
State Of Bihar
Case No. : 105 of 1958
Date of Decision : 10/13/58
Advocates Appeared: Chatterjee N.C. : Chaudhuri K.B. : Daphtary C.K. : Dapthary C.K. : Nayar V.P. : Pillai M.R.Krishna : Pillai P.K. : Umrigar H.J. : Varma S.P. : Chaudhuri K.R.
Advocates:
C.K.DAFTARY, H.J.Umrigar, K.B.CHOUDHARI, M.R.Krishna Pillai, N.C.CHATTERJI, P.K.PALLI, S.P.Varma, V.P.NAYAR
C.K.DAFTARY, H.J.Umrigar, K.B.CHOUDHARI, M.R.Krishna Pillai, N.C.CHATTERJI, P.K.PALLI, S.P.Varma, V.P.NAYAR
An administrative code consisting of circulars and orders without statutory authority does not constitute "law" under Article 13 of the Constitution and cannot be used to deprive individuals of their fundamental right to property under Article 31(1).
Headnote:(A) Constitution of India - Articles 13, 31(1) and 32 - Right to Property - Administrative orders vs. Law - Whether an administrative code, lacking statutory authority, can be used to divest a managing committee of its proprietary rights as trustees of a school - If a provision of an education code is merely a compilation of circulars and administrative orders, it does not constitute "law" within the meaning of Article 13 of the Constitution (Para 9). Consequently, such a code cannot be the basis for depriving persons of their property rights under Article 31(1) (Para 9).
Facts of the case:
A managing committee established a school, purchased land, and constructed buildings, holding the property as trustees. Following a dispute over the discharge of a headmaster and the committee's refusal to comply with government orders for reinstatement, the government appointed an ad hoc committee to take over the management and possession of the school. This action was based on a provision of an education code that allowed for the withdrawal of approval of the managing committee and the making of alternative management arrangements pending reconstitution.
Findings of Court:
The court found that the managing committee held the land and buildings as trustees. It was established that the education code relied upon by the government was a compilation of administrative orders and circulars issued by the Director of Public Instruction and lacked statutory authority. Therefore, it did not have the force of law.
Issues: Whether the petitioners' fundamental right to property was infringed by the government's attempt to take over the school management and property based on an administrative code, and whether said code constituted "law" under the Constitution.
Ratio Decidendi: For a person to be deprived of property, it must be done by "authority of law." An administrative code consisting of circulars and orders without statutory backing does not qualify as "law" under Article 13 of the Constitution. Thus, the government cannot divest trustees of their proprietary rights through a mere administrative fiat (Paras 9-11).
Result: Petition allowed.
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2. Petitioners allege infringement of fundamental right to property; respondents contend the takeover is for public interest and authorized under the Bihar Education Code. (Para 3 , 4 )
3. The court observed that the petitioners hold school property as trustees and the Education Code is an administrative compilation lacking statutory force of law. (Para 6 , 9 )
4. Administrative orders or circulars lacking statutory authority do not constitute law under Article 13 and cannot be used to deprive persons of property rights. (Para 9 )
5. Petition allowed — Respondents restrained from interfering with school property except by authority of law — Costs awarded to petitioners. (Para 11 )
6. Does an administrative education code have the force of law for depriving property rights?
No. A code compiled by an official and issued as circulars or administrative orders without statutory authority does not constitute law under Article 13 of the Constitution and cannot justify the deprivation of property rights. (Para 9 )
7. Can the government use executive force to take over school property based on administrative rules?
No. Without legal justification or authority of law, the government cannot use executive force to deprive trustees of their rights to hold property for a school. (Para 10 , 11 )
8. What is the legal status of a Managing Committee that purchases land for a school?
Where a Managing Committee purchases land and constructs buildings for a school, they are considered the proprietors of the land and building as trustees for the purposes of the school. (Para 6 )
B.P.SINHA, J.
(1) THIS petition under Art. 32 of the Constitution is directed against certain orders passed by officers of the Bihar government in the Education Department, in respect of the Parsa High English School, and prays for an appropriate writ, direction or order restraining their from taking possession of the school, or in any way, interfering with the internal management of the said school. The first petitioner, Shri Dwarka Nath Tewari, M. P., claims to be the President of the Managing Committee of the school, the second petitioner, Shri Murlidhar Pandey, to be the secretary, and the petitioners 3 to 6, to be members of the Managing Committee of the school. The 7th and the last petitioner is the Parsa High English School through the secretary, Managing Committee. The State of Bihar is the first respondent, and the Board of Education, Bihar, is the second respondent. Respondents 3, 4 and 5 are officers of the government, who have been constituted an ,ad hoc Committee pending the constitution of the Managing Committee of the school, according to the rules laid down in the Education Code.
(2) THE application is founded on the following allegations : In 1931, in pursuance of a unanimous resolution of the local public of Parsa, Thana head-quarters in the District of Saran in Bihar, a Managing Committee was formed with the first petitioner as its secretary and other persons as members of the Committee, to raise subscriptions for, and to manage, the proposed High English School at Parsa. The school was started in,; 1932, by subscriptions raised from amongst the residents of villages round about the Parsa police station. The first petitioner claims to have made a substantial contribution to the funds of the school, in several instalments totalling over Rs. 11,000.00. The day-to-day management of the school was entrusted to a Managing Committee consisting of 11 members, including teachers representatives, the Head Master for the time being, and subscribers representatives. The Managing Committee purchased several plots of land in the name of the secretary on behalf of the Managing Committee, and constructed the school building on the said land. Thus, the Managing Committee claim to be the owners of the school and of the land and buildings. The school is open to persons of all castes and creeds, and nominal tuition fees were charged 10 per cent., of the total strength of the students, were granted free studentships. In 1935, the school was given recognition by the Biliar government. In 1950, the Managing Committee of the school was asked by the government not to charge any fees from Harijan students, and to raise the percentage of free studentships from 10 to 15 per cent of the total strength of the school. The government also requested the school not to charge any fees from students in the 4th and 5th classes (Primary classes). The government gave an. annual grant to the school, amounting to between two and three thousand rupees. In 1952, the government also requested the school authorities that higher salary should be paid to the teachers, the government undertaking to meet the extra cost thus to be incurred. Prior to June 1954 the Managing Committee of the school did not contain any nominees. After June 1954, the Bihar government Education Code was amended so as to require the inclusion of government nominees, guardians representatives, subscribers representatives and donors in the Managing Committee of the school. About the same time, changes were made in the service conditions of teachers in the schools, enabling a teacher, who is punished by a Managing Committee, to prefer an appeal to the Education Department. The said change was made without any consultation with the school authorities who were not apprised of the changed rules. The then Head Master of the school, named Sheo Kumar Misra Sharma, on coming to know of the new changed rules about the service conditions of teachers, "began to show discourtesy
