IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.389 of 2010 1. DASHRATH YADAV S/O LATE PARMESHWAR YADAV R/O VILL. SIMARA TOLA, THEGEWA, P.O. BORAHI BAZAR, P.S. AURANGABAD (MUFFASIL), DISTT. AURANGABAD Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE AURANGABAD 3. THE DISTRICT SUPERINTENDENT OF EDUCATION AURANGABAD 4. THE DEPUTY DEVELOPMENT COMMISSIONER AURANGABAD 5. THE CIRCLE OFFICER AURANGABAD DIVISION, AURANGABAD 6. MANIK CHAND YADAV S/O LATE SAHDEO YADAV R/O VILL.- SIMARA TOLA THEGAWA, P.O.- BORAHI BAZAR, P.S. AURANGABAD (MUFFASIL), DISTT. AURANGABAD For the State:- Mr. Nagendra Sharma, A.C. to G.P.-8 For Respondent no. 6:- Mr. Ashok Kumar Singh, Advocate ----------- 03. 24.02.2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is stated to have executed a registered gift deed on 6.2.2008 in favour of the Governor of Bihar, for establishment of a primary school upon Khata No. 224, Plot No. 489, having an area of 20 decimal at Village- Simra Tola, Thegewa, District- Aurangabad. His grievance is that contrary to the lands donated the authorities are contemplating the establishment of the school at another location as determined by the Deputy Development Commissioner. He relies upon a Bench decision of this Court in 2010 (2) PLJR 449 (Surendra Yadav Versus State of Bihar) and submits that the Gram Panchayat 2 had resolved in favour of the lands of the petitioner under Section 47 (14) of the Bihar Panchayat Raj Act. It is the Panchayat Samiti who is competent to decide on the location of the school. Directions were then given to the Collector in accordance therewith. Section 22 of the Act dealing with the functions of the Gram Panchayat in Sub-clause-XII provides for it to promote public awareness, participation and ensuring full enrollment and attendance in primary school. Section 47 Sub-clause 14 of the Act vests power in the Panchayat Samiti to promote primary and secondary education construction, repair and maintenance of primary school building. Section 73 Sub-Clause 17 Sub-Clause (I), (V) vest jurisdiction in the Zila Parishad alone to decide on the establishment of primary and secondary schools, hostels etc. There can be no doubt that the word “Establishment” takes within its ambit location of the school where it is to be established. The Gram Panchayat and the Panchayat Samiti do not have power to decide on the establishment. When a school is established, obviously the location where it is to be established has to be decided by the authority conferred power to decide the establishment. The aforesaid statutory provisions do not 3 appear to have been place in the case of Surendra Yadav (supra) when the Court proceeded on the cited provision only that the responsibility for construction, repair and maintenance of school building under Section 47 (XIV) lay with the Panchayat Samiti and if it had resolved to establish the school at the particular place the location could not be changed. Section 73 as discussed above did not come up for consideration as the Court’s attention was not invited. In 2001 (10) SCC 75 (Raj Shikshan Prasarak Mandal Versus State of Maharashtra And Others) the Supreme Court has held that matters for location of schools etc. are issues of executive authority and unless any statutory provisions are violated or outright allegations of strong malafides to the satisfaction of the court are made the Writ Court under Article 226 should not interfere with such executive matters. The location of the primary school can therefore be decided only by the Zila Parishad and not by the Deputy Development Commissioner. If the Zila Parishad resolved for lands other than that of the petitioner, the lands have to rebutt to the petitioner unless a fresh agreement is arrived at between the State and the petitioner in respect thereof to be used in a different manner. 4 The writ application stands disposed. P.K. ( Navin Sinha, J.)