Case: Sri Dwarka Nath Tewari &amp; Ors Vs. State Of Bihar &amp; Ors

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 Code2. 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. 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 student ships. In 1935, the school was given recognition by the Bihar 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 to the members of the Managing Committee and began to neglect his duties and mismanage the School affairs. After several warnings to the Head Master to be of good behaviour and on his failure to do so, he was suspended by the Managing Committee towards the end of December 1955. After framing charges against him, and after receiving his explanation and hearing him, the Managing Committee found him guilty of the charges, and ordered his discharge. Soon after, on 2nd January 1956, the Managing Committee duly appointed another Head Master in his place. The discharged Head Master moved the Inspector of Schools, Tirahut Division, against the order of discharge. Under orders of the Director of Public Instruction, who is the President of the Board of Secondary Education, an inquiry was held by the Acting Secretary of the Board, who submitted his report, but no. orders appear to have been passed thereon. The Director of Public Instruction ordered a fresh joint inquiry by the Secretary of the Board and a Deputy Director of Public Instruction. They heard the President and the Secretary of the school and the Head Master, and submitted a report. On a consideration of the second report, the Board of Education held that the discharge of the former Head Master was not justified, and ordered his reinstatement. About 12th December 1957, the Board of Education addressed a letter through the Inspector of Schools, to the Secretary of the school, ordering that "Shri Sheo Kumar Mishra Sharma should take charge of his duties as Head Master of the High School, Parsa by 16th December 1957 without fail." It also contained consequential orders as regards his salary during his period of suspension, his increment and provident fund contribution. It also required the re-constitution of the Managing Committee of the school with all possible speed. The letter ended with the following paragraph :"In case the authorities of the school flout the orders of Government an ad hoc committee be appointed to take over the management of the School and present managing committee be dissolved." *The discharged Head Master thereafter turned up to take charge of the school, in pursuance of the aforesaid order of the Government, but he was not allowed to do so, and was informed by the President of the school that a meeting of the Managing Committee had beep called on 31st December 1957, to consider the letter aforesaid. On December 22, 1957, the District Inspector of Schools, Saran, wrote to the Inspector of Schools, Tirahut Division, informing him that the school authorities had failed to carry out Government orders contained in the letter aforesaid, and suggesting that an ad hoc committee consisting of the respondents 3 to 5 aforesaid, may be constituted to look after the management of the school. A copy of that letter was forwarded to the school authorities. On December 31, 1957, the Deputy Inspector of Schools, one of the three officers of the Government, constituting the ad hoc Committee came to the school, and asked for charge being handed over to him. He was informed that the order of the Government was illegal, and the decision of the Managing Committee, which was to meet that very day, will be communicated to the authorities in due course3. It is not necessary for the purposes of this case to refer in detail to the infructuous proceedings taken in the High Court under Art. 226 of the Constitution, and to the attempts by the school authorities to obtain a temporary injunction against the members of the ad hoc committee and the discharged Head Master who had been ordered to be reinstated, by way of interlocutory petitions in the suit instituted by the second petitioner in the Court of the Subordinate Judge of Chapra (headquarters of District Saran). The Courts order refusing such a temporary injunction restraining the defendants from taking charge of the school, was upheld by the High Court in its revisional jurisdiction, by its order dated May 13, 1958. After the petitioners had failed to get any relief from the Courts aforesaid in those proceedings, they got into touch with the officials of the Government of Bihar, for explaining their position vis-a-vis the management of the school, and the legal position of the Managing Committee of the school. Ultimately, on July 31, 1958, the first petitioner received a letter dated July 28, 1958, from the third respondent to the effect that in view of the Courts refusal to issue any injunction against the ad hoc committee, he, as the President of that committee, proposed to take charge of the school on August 14, 1958, and he requested him to hand over complete charge of the school to the ad hoc committee. In view of the letter aforesaid, the petitioners moved this Court under Art. 32 of the Constitution, for the protection of their alleged fundamental rights to property. They alleged that they apprehended "that if charge is not given over as requested in the said letter. possession will be taken by force with the aid of the police and local executive authorities." They also moved this Court for an ex parte order staying the handing over of the school and its property to the respondents. By its order dated August 11, 1958, this Court granted ex parte stay till the hearing of the Notice of Motion. In answer to the Notice of Motion, the 4th respondent swore an affidavit to the effect that it was not sought to interfere with the property, of the school, but with the management thereof, in the interest of the public; that the order dated July 28, 1953, was in accordance with the provisions of the Bihar Education Code which had the force of law; that the petitioners had failed to obtain an injunction or order from the Courts below in a pending suit in which identical questions has been raised; that by the order aforesaid of the Government, it was not intended to take over the management of the school, but to re-constitute an efficient Committee of management. After hearing the parties, this Court made the following order on September 8, 1958, in the stay matter :"Interim order is made absolute until the disposal of Article 32 Petition which is fixed for final disposal on 23rd September 1958 subject to part heard."4. Several affidavits have been filed on each side. On behalf of the respondents, the 4th respondent, who is the Deputy Inspector of Schools, Chapra, swore the affidavit in opposition to the petitioners allegations in their several affidavits. It is not necessary to set out the allegations made on behalf of the respondents in their affidavit relating to the part played by the first petitioner in founding and running the school, or to the proceedings taken against the Head Master, or to the many acts of mismanagement on the part of the Managing Committee, most of whom are petitioners in this case, because this Court is not concerned with the merits of those controversies.

Reasoning:
The counsel for the respondents was not able to point out any allegations in their affidavits denying those allegations. It must, therefore, be taken, for the purposes of this case, that the fact is admitted on behalf of the respondents that the Managing Committee purchased the land, and constructed the building for the school on that land, and that the Committee is the proprietor of the building and the land on which the building stands. But it is a little difficult to appreciate in what way the Committee can claim to be the "owner of the School, " apart from the land and the building. We must, therefore, proceed on the assumption that the petitioners are the proprietors of the land and the building of the school as trustees but certainly not as beneficial owners in the sense in which property ordinarily is owned and possessed-that was not even claimed on behalf of the petitioners. The petitioners are, therefore, entitled, on that assumption, to hold the land and the building of the school as trustees for the purposes of the school. It is also clear, on the affidavits, that the Education Department of the Bihar Government, purported to divert the petitioners of their character as trustees in respect of the land and the building of the schoolIf the amended Art. 182 of the Code, extracted above, is law within, the meaning of the article aforesaid of the Constitution, the petitioners cannot have any just complaint if they have been or are being deprived of those properties, because it is clear that the petitioners are holding the properties not in their individual absolute rights but only as trustees, for the purposes of the school. They have the properties vested in them because they are the Managing Committee. If they have been divested of those rights by the authority of law, this petition under Art. 32 of the Constitution must stand dismissed. If, on the other hand, the amended Art. 182 of the Education Code, is not law within the meaning of Art. 13 of the Constitution, then the petitioners cannot be deprived of their right to hold the properties as trustees, by a mere fiat of the officials of the Government of BiharIt is clear, therefore, from the portion of the preface extracted above, that Art. 182 of the Code has no. greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no. such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid11. The endorsement aforesaid to the District Inspector of Schools and other officers mentioned therein, shows that they were authorized by the Inspector of Schools to seek the aid of the local executive authorities in the event of the Managing Committee not making over complete charge of the School which, in the context, includes the buildings also.