IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4901 of 1997 MAN.COMM.OF MADARSA ISLAMIA Arabia Rampur Konder, P.S. Kesaria, District East Champaran, through its Secretary Jamil Ahmad son of Khalil Ahmad resident of village- Rampur Konder, P. S. Kesaria, district- East Champaran. ….. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Bihar State Madarsa Education Board, Sri Krishnapuri, Patna. 3. The Chairman, The Bihar State Madarsa Education Board, Sri Krishnapuri, Patna. 4. The Secretary, the Bihar State Madarsa Education Board Sri Krishnapuri, Patna. 5. The Special Director, Secondary Education, Government of Bihar, Patna. 6. Shamsul Haque son of late Zahid Hussain. 7. Mohammad Isa son of Abdus Shankoor. 8. Anwarul Haque son of Zahid Hussain 9. Mansoor Ahmad son of Suba Hussain . 10. Md. Farooque son of Anwarul Haque. 11. Maqbool Alam son of Suba Hussain. 12. Nabi Hasan son of Tafazzul Hussain. 13. Kausar Ali son of Nasrullah. 14. Akhtar Ali son of Dr. Jan Mohammad. 15. Rahmatullah son of Md. Rasool All resident of village- Rampur Kondar, P.S. Kesariya, district East Champaran. … Respondents. ----------- 5. 13.07.2010 Heard Mr. Ram Suresh Rai, learned senior counsel for the petitioner, counsel for the State as also Mr. Rashid Alam, learned counsel for the Bihar State Madarsa Education Board (hereinafter referred to as „the Board‟). The prayer of the petitioner in this writ petition reads as follows:- “(A) For issuance of appropriate writ/order or direction for quashing the order dated 25.4.1997 passed in Appeal No. 8/93 by the Special 2 Director, Secondary Education Bihar Patna by which the approval granted to the petitioner managing committee by the Bihar State Madarsa Education Board has been set aside as contained in Annexure-8 to this petition. (b) For issuance of appropriate writ/order or direction allowing the petitioner‟s managing committee to manage the affairs of the Madarsa Islamia Arabia Rampur Kondar in the District of East Champaran. (c) For issuance of appropriate writ/order or direction restraining the respondent no. 6 to 15 from disturbing in the peaceful functioning of the petitioners managing committee.” Mr. Roy, learned senior counsel for the petitioner at the outset would raise a pure question of law while assailing the impugned appellate order passed by the Special Director, Secondary Education. He would submit that the order dated 28.4.1993 passed by the Chairman of the Bihar State Madarsa Board giving approval to the Managing Committee of Madarsa Islamia Arabia Rampur Kondar consisting of respondent no. 3 to 10 has been interfered by the appellate authority only on the ground that the Chairman of the Board in isolation had no power to give such approval to the Managing Committee. In this context, he would refer not only to the provision of 3 Section 7 and 13 of the Bihar State Madarsa Education Board Act (hereinafter referred to as „the Act‟) but also to special delegation made in the Chairman of the Board by the Board in Resolution dated 29.8.1983. In fact, for this purpose he would also rely on the judgment of this Court in the case of Abdul Azeem Haidri vs. State of Bihar & Ors., reported in 2001(3) BLJ 83, wherein this Court on appreciation of the said resolution of the Board dated 29.8.1983 had held that the similar finding arrived by the Special Director questioning the power of the Chairman of the Board was wholly illegal. Counsel for the State and the Board do not question the said proposition of law as submitted by Mr. Roy nor they are in a position to distinguish the facts of the present case from the ratio of the judgment of this court in the case of Abdul Azeem Haidri (supra) . That being so, when this court would find that not only the provision of the Act provides for delegation of power by the Board to its Chairman but the Chairman of the Board had been also authorized and delegated power by the Board specifically for giving approval of constitution of Managing Committee and/or any 4 appointment made by the said Managing Committee, the impugned appellate order proceeding only on the basis of such action of the Chairman of the Board to be without jurisdiction on the ground that such power could not have been exercised by the Chairman cannot be sustained in law. In fact this aspect of the matter was noticed at some length in the case of Abdul Azeem Haidri (supra) wherein in paragraph 5 and 11 this aspect of the matter has been considered and decided in the following terms. “5. On the aforesaid aspect of law, on behalf of the petitioner strong reliance was placed upon a resolution of the Madarsa Board dated 29.8.83 contained in Annexure-11 to submit that the Madarsa Board in exercise of its statutory power and within the permissible extent has directed the Chairman of the Board or delegated the Chairman of the Board to perform certain functions and powers of the Board under the Act until the rules and regulations contemplated under the Act are failed and enforced. Such delegated functions, as per Annexure-11 are to be performed by the Chairman subject to review by the Board and the scope of such functions and powers given to the Chairman by the Board shall not cover matters like affiliation, disapplication of Madarsa, creation of new posts, acquisition of properties, constitution of different committees or any manner of policy concerning Madarsa Board. ……………............................................ 5 11. It is undisputed that the Madarsa Board itself has been vested with the power to frame regulations as provided by different clauses of 7(2) of the Act somewhat similar to Section 79(K) of the Electricity (supply) Act. The provision of Clause (r)of Section 7(2) vests the Madarsa Board with the power to frame regulations to give effect to the provisions of the Act. The provisions of the Act give power to the Madarsa Board to direct, supervise and Control Madarsa Education in general. The Act, unlike several similar statutes creating Boards and Corporations does not contain any special provision regarding the procedure for framing of regulations and no conditions have been imposed like publication in the official Gazettee or an approval by the State Legislator. The Act through different sub-clauses of Section 7(2) merely vests, the Madarsa Board with the power of framing regulations. In such circumstances there appears sufficient force in the submission of the learned counsel for the petitioner that until contrary rules and regulations are framed under the Act the direction or delegation made by Annexure-11 occupies a similar position as that of the regulation which may be framed by the Madarsa Board. Thus, the main question formulated earlier for decision has to be decided in favour of the petitioner‟s contention that under implicit powers of delegation the Madarsa Board has validly issued the directions and delegations contained in Annexure-11 and thereby subject to conditions mentioned in Annexure-11 itself the Chairman has been vested with necessary powers to exercise the normal functions and duties of the Madarsa Board.” 6 In the light of the aforementioned authentic pronouncement of this Court which has remained undisturbed till date, the finding of the appellate authority seems to be wholly incorrect inasmuch as the Special Director had held therein that; “From the order dated 28.4.1993 which is under appeal it is obvious that the Chairman of the Board has accorded approval to the managing committee of Respondent No. 3 to 10 headed by Maulvi Ramzan Ali respondent no. 3. This fact was not denied on behalf of the respondent. The Chairman of the Board has passed the order without jurisdiction. Thus the order under appeal is illegal and is not sustainable.” The aforesaid extracted portion of the impugned order in fact being only the relevant portion while allowing the appeal for setting aside the order of approval of the Managing Committee cannot be sustained in law and is accordingly quashed. Since the appeal was decided only on the question of jurisdiction of the Chairman of the Board, this Court having set aside the appellate order as contained in Annexure-8 dated 25.4.1997 would remit the matter back to the appellate authority i.e. Special Director, Secondary Education for rehearing and fresh disposal of 7 the appeal strictly in accordance with law. The application is accordingly allowed. There would be however no order as to costs. kanchan (Mihir Kumar Jha, J.)