IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4903 of 2009 Shivdhari Mandal . Versus The State Of Bihar & Ors . ----------- For the Petitioner:- Mr. Shiv Shanker Azad, Adv. For the State:- Mr. S.K. Mandal, Adv. Mr. Abdus Shakoor, Adv. ---------------- 2. 22.07.2011 Heard learned counsel for the petitioner and the State. The petitioner is stated to have donated lands by a registered deed to the State Government for establishment of a primary school in the village Barbanna Barmotra. His claim is that the school has been established and teaching work commenced. That there were 130 students. The Mukhiya of Gram Panchayat, Kupari filed an application before the District Superintendent of Education, Araria for shifting the location of the primary school. On 14.3.2009 the District Education Officer has passed a contradictory and collusive order contrary to his own earlier report dated 25.6.2008 recommending shifting of the school. If the petitioner had donated lands by a registered deed to the State Government for the specific purpose of a school, either the school must be established on that land in accordance with law or the vacant lands must revert to the petitioner. The nature of user of the donated land cannot be changed except with 2 the consent of the petitioner. The location and establishment of a school is primarily an executive function and it is not for the Court to interfere with it unless there is violation of any statutory Rule or outright allegations of mala fide as held in (2001)10 SCC 75 (Raj Shikshan Prasarak Mandal vs. State of Maharashtra) at Paragraph-3 as follows:- “3………….The shifting of the school from one place to the other or having an ashram school at one place is not governed by any statutory rules and it is in fact a policy decision of the Government. So long as the government decision is not actuated with any malice or is not the outcome of an arbitrary and whimsical act, the same should not be interfered with by a Court of law under Article 226 of the Constitution of India……….” If what the petitioner contends is correct that the school has been established at the earlier location and was functioning, a report was submitted that the location was conducive, any subsequent effort to shift the school by the report dated 14.3.2009 which does not appear to be suggesting anything substantive for change of the location considered to the earlier report, it may require administrative interference. Section 73(17)(i) of the Panchayat Raj Act, 2006, vests the power for establishment of a primary school in the Zila Parishad. If the statutory power is vested in a specified authority the District Education 3 Officer of any other person cannot usurp the power of the Zila Parashid. The report dated 14.3.2009 is therefore inconsequential for the purpose of location of the school and at best may be a recommendation only. If at all the location of the school has to be shifted, the Zila Parishad alone is competent to take that decision and not the District Superintendent of Education. The writ application stands disposed with the aforesaid directions/observations. P. Kumar ( Navin Sinha, J.)