The Chairman, Bolpur Municipal Corporation and ors. Vs. the Chairman, Ad Hoc Committee, Bolpur District Primary School Council and ors. - Court Judgment

Excerpt:
- orderashim kumar banerjee, j.1. subject matter of challenge herein is a notification dated april 15, 1992 issued under section 66 of the west bengal primary education act, 1973 (hereinafter called as act of 1973) and a consequential order passed by the authority on june 12, 1997. the vires of section 64, 65 and 66 of the said act of 1973 is also under challenge. this court initially directed notice to be served on the advocate general of the state as the vires of the state statute is involved herein. however, the advocate general did not appear. this court directed mr. l.k. gupta, learned senior advocate to assist this court as amicus curiae.2. mr. somendra chandra bose, learned senior advocate appearing for the writ petitioner, has submitted as follows :--1. sections 64,65 and 66 of the said act are ultra vires the constitution since the same empower the state to acquire property without payment of compensation.2. according to mr. bose, article 19(1)(f) and article 31(2) were in force in the year 1973 when the said act was enacted. hence, by virtue of the said two articles the said three sections should be declared ultra vires the constitution. mr. bose in support of his contention has cited the case reorted in : air1981sc271 .3. the notification was attacked by mr. bose principally on the two grounds viz. the said notification can not be issued by virtue of the provisions of the said three sections which according to him are ultra vires the constitution as the same did not contemplate any payment of compensation in respect of the landed properties which are sought to be taken and consequently asuming the said sections are properly enacted, the case of the schools run by the municipality comes under section 65 and not under section 66 wherein the government is to consult the concerned municipality before taking over of the said schools and as such the said notification issued under section 66 is bad in law and is liable to be set aside.3. mr. pabitra kumar bose appearing for the state has contended, inter alia, as follows :--1. although the said act had been enacted in the year 1973 the same was given effect to in the year 1990, by this time article 31c has come into force.according to mr. bose the said act is a piece of social welfare legislation where the state thought it fit to provide compulsory primary education in the state to implement part iv of the constitution.2. according to mr. bose, 1973 act came into force to serve the directive principles providing free and compulsory primary education. under the constitution, according to him, such action on the part of the state is immune from challenge becuase of introduction of article 31c. reliance has been placed by shri bose in this regard on the decision reported in : air1992sc938 and : air1990sc123 . mr. bose has also relied upon the case of rastriya mill mazdoor sangh reported in : (1997)iillj720sc and the case of maharashtra state electricity board, reported in : air1990sc153 .3. relying upon the aforesaid decision, mr. bose has submitted that the validity of the said three sections are immune from challenge by virtue of the well settled principles of law laid down by the apex court.4. mr. subir sanyal, led by sri arun prakash sarkar, senior advocate appearing for the district primary school council, adopted the submission of mr. p.k. bose.5. on a composite reading of the said three sections being 64, 65 and 66 it appears that the state wanted to bring all primary school under one single unit so that it could control the system of primary eduction in the state. such action on the part of the state is permissible under chapter iv of the constitution as this is obligatory on the part of the state to provide free and compulsory education at least at the primary level to the illiterate mass of the state. it is true that the said three sections did not contemplate any payment of compenstion to the properties of the school administration who are so long running the school prior to the enactment of the said act. it is also true that the said three sections empower the government to take control of all the primary schools in the state whether it is run by the private management or under any local self government. legislators however thought it fit to set apart the municipal schools by incorporating a separate provision for the same being section 65 wherein a negotiation is necessary with the municipal authority before taking over of the properties belonging to the said municipal schools.6. the right to property is no more preserved as a fundamental right. article 31(2) was repealed by the said 44th amendment. now the question remains whether at the time of enacment i.e. in the year 1973 those sections being 64, 65 and 66 were properly enacted or not. since the said act 1973 was given effect to in 1990 the said three sections should be judged on the basis of the prevailing law in the year 1990. as by 44th amendment article 31(2) was repealed and 31c was introduced the said three sections are immune from challenge. in the case of state of orissa v. chandra sekhar reported in : [1970]1scr593 the apex court was of the view that a law can not be said to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by the deligate empowered to bring into operation. in the instant case, although the said act of 1973 was enacted before 44th amendment the said act came into operation in 1990. hence, the challenge to the said act or any section thereof must be judged treating the said act as of 1990 and not of 1973. in that view of the matter i hold that article 31(2) has no application in the instant case as the same was deleted before july 2, 1990 when the subject act came into force.7. as i have just now held that the said act is immune from challenge because of delection of article 31(2) and inclusion of 31c, i have no hesitation to accept the contention of mr. p.k. bose in this regard.8. in the result 1 hold that the said three section being 64, 65 and 66 of the said act of 1973 are immune from challenge and the writ petition fails on the said score.9. mr. gupta, however, has drawn my attention to the said three sections wherein, according to him, ipso facto vesting of properties have not been provided for in the said act. taking over of the properies have been left to the executive. according to mr. gupta, even if the said three sections are held intra-vires the action on the part of the executive while issuing notifications is not immune from challenge under article 31c. however, i do not wish to deliberate on the said scope as this court has not been approached by the writ petitioner from the said angle and i keep this issue open to be decided in an appropriate proceedings if brought by any concerned party.10. with regard to the impugned notification i have no hesitation to hold that the same has been issued under a wrong section being section 66, the schools sought to be taken over by the impugned notification are admittedly under control and management of the municipalities. the legislature thought it fit to provide negotiation prior to taking over of the school run by the local self government. the authority concern should have adopted the mode prescribed under section 65 of the said act prior to issuance of the said notification.11. hence the writ petition succeeds in part. the notification dated april 15, 1992 and the consequential notification dated june 12, 1997 are quashed and set aside. this order of quashing will, however, not preclude the authority concerned to issue notification afresh by proper exercise of power under the said act, 1973 upon due process of law prescribed under the said statute.12. writ petition is thus disposed of without any order for costs.13. in deference to the desire of this court, mr. gupta has made valuable contribution in disposing of the instant case. this court records its appreciation in this regard.14. urgent xerox certified copy, if applied for, be supplied on usual undertakings.15. later :mr. sanyal, appearing for the primary school council, prays for stay of operation of this order. such prayer is not opposed by any of the appearing parties.hence, operation of this order is stayed for two weeks from date.

Judgment:
ORDER

Ashim Kumar Banerjee, J.

1. Subject matter of challenge herein is a notification dated April 15, 1992 issued under Section 66 of the West Bengal Primary Education Act, 1973 (hereinafter called as Act of 1973) and a consequential order passed by the authority on June 12, 1997. The vires of Section 64, 65 and 66 of the said Act of 1973 is also under challenge. This Court initially directed notice to be served on the Advocate General of the State as the vires of the State statute is involved herein. However, the Advocate General did not appear. This Court directed Mr. L.K. Gupta, learned senior Advocate to assist this Court as amicus curiae.

2. Mr. Somendra Chandra Bose, learned senior advocate appearing for the writ petitioner, has submitted as follows :--

1. Sections 64,65 and 66 of the said act are ultra vires the Constitution since the same empower the State to acquire property without payment of compensation.

2. According to Mr. Bose, Article 19(1)(f) and Article 31(2) were in force in the year 1973 when the said act was enacted. Hence, by virtue of the said two articles the said three sections should be declared ultra vires the Constitution. Mr. Bose in support of his contention has cited the case reorted in : AIR1981SC271 .

3. The notification was attacked by Mr. Bose principally on the two grounds viz. the said notification can not be issued by virtue of the provisions of the said three sections which according to him are ultra vires the Constitution as the same did not contemplate any payment of compensation in respect of the landed properties which are sought to be taken and consequently asuming the said sections are properly enacted, the case of the schools run by the municipality comes under Section 65 and not under Section 66 wherein the Government is to consult the concerned Municipality before taking over of the said schools and as such the said notification issued under Section 66 is bad in law and is liable to be set aside.

3. Mr. Pabitra Kumar Bose appearing for the State has contended, inter alia, as follows :--

1. Although the said Act had been enacted in the year 1973 the same was given effect to in the year 1990, by this time Article 31C has come into force.

According to Mr. Bose the said Act is a piece of social welfare legislation where the State thought it fit to provide compulsory primary education in the State to implement part IV of the Constitution.

2. According to Mr. Bose, 1973 Act came into force to serve the directive principles providing free and compulsory primary education. Under the constitution, according to him, such action on the part of the State is immune from Challenge becuase of introduction of Article 31C. Reliance has been placed by Shri Bose in this regard on the decision reported in : AIR1992SC938 and : AIR1990SC123 . Mr. Bose has also relied upon the case of Rastriya Mill Mazdoor Sangh reported in : (1997)IILLJ720SC and the case of Maharashtra State Electricity Board, reported in : AIR1990SC153 .

3. Relying upon the aforesaid decision, Mr. Bose has submitted that the validity of the said three sections are immune from challenge by virtue of the well settled principles of law laid down by the Apex Court.

4. Mr. Subir Sanyal, led by Sri Arun Prakash Sarkar, Senior Advocate appearing for the District Primary School Council, adopted the submission of Mr. P.K. Bose.

5. On a composite reading of the said three sections being 64, 65 and 66 it appears that the State wanted to bring all primary school under one single unit so that it could control the system of primary eduction in the State. Such action on the part of the State is permissible under chapter IV of the Constitution as this is obligatory on the part of the State to provide free and compulsory education at least at the primary level to the illiterate mass of the State. It is true that the said three sections did not contemplate any payment of compenstion to the properties of the school administration who are so long running the school prior to the enactment of the said Act. It is also true that the said three sections empower the Government to take control of all the primary schools in the State whether it is run by the private management or under any local self government. Legislators however thought it fit to set apart the municipal schools by incorporating a separate provision for the same being Section 65 wherein a negotiation is necessary with the municipal authority before taking over of the properties belonging to the said Municipal schools.

6. The right to property is no more preserved as a fundamental right. Article 31(2) was repealed by the said 44th Amendment. Now the question remains whether at the time of enacment i.e. in the year 1973 those sections being 64, 65 and 66 were properly enacted or not. Since the said Act 1973 was given effect to in 1990 the said three sections should be judged on the basis of the prevailing law in the year 1990. As by 44th amendment Article 31(2) was repealed and 31C was introduced the said three sections are immune from challenge. In the case of State of Orissa v. Chandra Sekhar reported in : [1970]1SCR593 the Apex Court was of the view that a law can not be said to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by the deligate empowered to bring into operation. In the instant case, although the said Act of 1973 was enacted before 44th Amendment the said Act came into operation in 1990. Hence, the challenge to the said Act or any section thereof must be judged treating the said Act as of 1990 and not of 1973. In that view of the matter I hold that Article 31(2) has no application in the instant case as the same was deleted before July 2, 1990 when the subject Act came into force.

7. As I have just now held that the said Act is immune from challenge because of delection of Article 31(2) and inclusion of 31C, I have no hesitation to accept the contention of Mr. P.K. Bose in this regard.

8. In the result 1 hold that the said three section being 64, 65 and 66 of the said Act of 1973 are immune from challenge and the writ petition fails on the said score.

9. Mr. Gupta, however, has drawn my attention to the said three sections wherein, according to him, ipso facto vesting of properties have not been provided for in the said Act. Taking over of the properies have been left to the executive. According to Mr. Gupta, even if the said three sections are held intra-vires the action on the part of the executive while issuing notifications is not immune from challenge under Article 31C. However, I do not wish to deliberate on the said scope as this Court has not been approached by the writ petitioner from the said angle and I keep this issue open to be decided in an appropriate proceedings if brought by any concerned party.

10. With regard to the impugned notification I have no hesitation to hold that the same has been issued under a wrong section being Section 66, the schools sought to be taken over by the impugned notification are admittedly under control and management of the municipalities. The legislature thought it fit to provide negotiation prior to taking over of the school run by the local self government. The authority concern should have adopted the mode prescribed under Section 65 of the said Act prior to issuance of the said notification.

11. Hence the writ petition succeeds in part. The notification dated April 15, 1992 and the consequential notification dated June 12, 1997 are quashed and set aside. This order of quashing will, however, not preclude the authority concerned to issue notification afresh by proper exercise of power under the said Act, 1973 upon due process of law prescribed under the said statute.

12. Writ petition is thus disposed of without any order for costs.

13. In deference to the desire of this Court, Mr. Gupta has made valuable contribution in disposing of the instant case. This Court records its appreciation in this regard.

14. Urgent xerox certified copy, if applied for, be supplied on usual undertakings.

15. Later :

Mr. Sanyal, appearing for the Primary School Council, prays for stay of operation of this order. Such prayer is not opposed by any of the appearing parties.

Hence, operation of this order is stayed for two weeks from date.