(1.) THIS judgment will dispose of two connected writ petitions (Civil Writ No 878 of 1964 (Municipal Committee, Amritsar v. State of Punjab) and Civil Writ No 2173 of 1964 (Municipal Committee Karnal v. State of Punjab) As they raise common questions of law. it will be enough if we mention the facts in Civil Writ No 878 of 1964 for the facts in the other writ petition are almost the same and if there is any difference the same will be pointed out in the later part of this judgment
(2.) THIS petition under Articles 226 and 227 of the Constitution has been filed by the Municipal Committee Amritsar (hereinafter referred to as the Committee)
(3.) THE committee had been in existence for a large number of years and amongst other things, was running several Primary Middle and High Schools The Punjab government used to give grant in aid for the Primary and other schools. The liability for incurring the extra expenditure beyond the grant, was, of course, that of the Committee. The Government decided to provincialise all the local-body schools with effect from 1st of October 1957 and for that purpose on 19th of July 1957 a letter was written by the Secretary to Government, Punjab, Education department, to all the Deputy Commissioners (annexure B to the Writ Petition) in this respect and they were directed to inform all the Local Bodies not to open any new school or appoint any new teacher or upgrade the standard of any school. On 20th of July 1957, the District Inspector of Schools, Amritsar, sent a letter to the executive Officer of this Committee for supplying the necessary information in respect of teachers, ministerial staff and Class IV servants working in their schools on 31st of July 1957 (annexure C) the Committee passed a resolution to the effect that the schools should not be provincialised and the President and the Executive officer should call upon the Chief Minister and the other Ministers concerned to explain their point of view in this behalf. In spite of this, the Committee received a copy of the letter dated 5th of October 1957 (annexure D) addressed by the director of Public Instruction Punjab, to all the District Inspectors of Schools in the state, informing the Committee that all schools which had been provincialised with effect from 1st of October 1957 would henceforth be known as Government High, middle, Primary Schools for boys or girls as the case might be. In the meantime on 26th of September 1957, the Director of Public Instruction, Punjab, informed the local Body Schools in the Stale that the tuition-fees etc. , to be realised in such schools after 1st of October 1957 be credited to the Government in the treasury (annexure E ). It appears that most of the buildings, in which the schools were being run by the Committee, belonged to it, although in some cases, according to the petitioner. they had taken certain buildings on rent. On 21st of Nov. 1957 the Executive Officer of the Committee wrote a letter (annexure F) to the Deputy Commissioner. Amritsar, in which it was mentioned that no formal orders had been received from the Government asking the committee to give possession of the Schools. It appeared that no procedure had so far been devised for taking over the possession formally and for the settlement of terms and conditions on which the buildings, furniture, fillings and other materials were to be transferred. The transfer of all these properties without any order was most irregular and lots of objections might crop up later on It was requested that the Government be moved urgently in that connection, so that the committee should have definite orders regarding this matter. On 10th of september 1958, the Punjab Government wrote another letter to all the Deputy commissioners (annexure G) in which it was slated that the maintenance of the buildings of the provincialised Local-Body schools in the urban areas of the State had been entrusted to the Public Works Department (Buildings and Roads Branch ). The Municipal Committees were, therefore, asked to supply directly to the executive Engineers concerned the lists of the school buildings along with their plans etc. Thereafter, another letter D/-30-9-1958/4-10-1958 (annexure H) was sent by the government to all the Deputy Commissioners asking them to supply information in the pro forma enclosed, showing the contributions actually deposited into the treasuries by the Local Bodies in their respective Districts in respect of the provincialisation of their schools. Later, on 12th of December 1958 the Punjab government address ed another communication (annexure J) to all the Deputy commissioners to the effect that all the Local Bodies in their Districts might be advised to execute the transfer-deeds in respect of the school buildings etc. , in favour of the Superintending Engineers concerned. In continuation of the letter, annexure J, the Punjab Government informed the Deputy Commissioners by means of another letter dated 26th of December 1958 (annexure K) that the government desired that immediate steps should be taken for getting contributions from the Local Bodies and also for obtaining the transfer of buildings and equipment from them. They were requested to get the requisite resolutions passed by the Local Bodies in their districts. On 10th of January 1959 the Committee decided by means of a resolution (annexure M) not to pay any contribution for the present to the Government. It was not in favour of transferring the proprietary rights in its movable and immovable property in possession of the schools. The Committee was of the view that they were running the schools more efficiently than the Government and were not prepared to transfer them. On 14th of January 1959 (vide annexure L) another resolution was passed by the Committee reiterating its recent decision contained in their resolution dated 10th of January 1959. It was further resolved that the government be requested to agree to revert the Municipal Board Schools of the amritsar Township to the Committee and the Executive Officer was authorised to pursue the matter at personal level. The Committee communicated these resolutions to the authorities concerned. It appears, however, that the government, again asked for information in respect of contribution due from the committee on account of the provincialisation of the schools. The information sought for was in respect of the amount already deposited up to 31st of March 1959. The Committee, however, informed the District Inspector of Schools that it had decided not to pay any contribution. Since the Committee and some other municipal Committees were not willing to pay the contributions and transfer the properties, movable or immovable in the shape of buildings, furniture, record etc. , in possession of the schools, the Government enacted an Act, called the Punjab Local Authorities (Aided Schools) Act (Punjab Act No. 22 of 1959) (hereinafter referred to as the Act) This Act was published in the Punjab Gazette on 17th of june 1959. It was provided therein that the Act shall be deemed to have come into force on 1st of October 1957. On 24th of February 1960 the Committee passed another resolution (annexure N), by which the Committee reiterated its decision to request the Punjab Government to restore the Local Body schools to the committee and assure the Government that it would abide by the Government instructions regarding service rules and grades of the teachers. This was followed by another resolution passed on 9th of June 1960 (annexure O) to the effect that the Committee was not willing to pass a resolution under Section 3 of the Act transferring its schools and properties to the State Government and the government be requested to transfer the staff of the Schools to the Committee, especially those who wished to come back to the service of the Committee. It was further mentioned that the question of payment of the contribution did not arise because the schools were taken over by the Government without the committee's consent On 20th of September 1900 the Punjab Government, in exercise of its powers under the proviso to Section 5 of the Act. issued a notification (annexure P) taking over the management of the schools specified in the Schedule for a period of ten years, since they were satisfied that it was necessary in the interest of the students to do so. On 12th of December 1900 the government informed the Committee (annexure Q) that the question of the deprovincialisation of the Local Body schools had been carefully considered by them, but they found no justification for revising their original decision. On 14th of June 1901 the Committee passed another resolution (annexure R) to the effect that a deputation of the Committee should see the Chief Minister and other Ministers for requesting them to hand over the management of the schools to the Committee. On 3rd of January 1902 the Committee passed by a majority of 14 to 1 a resolution (annexure R-1) to the effect that the Committee should pay the contribution to the Government with effect from 1st of October 1957 on the basis of the formula laid down by the Government in this behalf. It was further resolved that the Committee should allow the Government to retain the use of the buildings and other movable property of the schools free of charge, but the proprietary rights in these properties should continue to belong to the Committee. It appears that the Urban Local Bodies Conference was held at Dalhousie and in the meeting of their Standing Committee held on 21sl of June 1902, they resolved that they were of the view that there was no justification for the State Government to charge any contribution from the Municipal Committees on account of the provincialisation of the Municipal Board Schools. It was also decided by them that the Municipal Committee, Amritsar, be requested to reconsider its decision regarding the payment of this contribution with respect to their provincialised schools A copy of this resolution was forwarded by the President of the Municipal committee, Bahadurgarh, to the President of the Municipal Committee, Amritsar. This resolution was considered by the Committee on 28th of March 1963 (annexure S) and it was decided that the resolution passed by the Standing committee be adopted. It was further decided that a deputation of five members be nominated by the President and they should wait on the Minister incharge to represent the Committee's view point. The Deputy Commissioner was in the meanwhile insisting upon the Committee to pay the amount of contribution. The committee. therefore, again passed a resolution on 18th of November 1963 (annexure T) by which it decided not to make any contribution to the Government in respect of the provincialised schools and strongly protested against the refusal of the Deputy Commissioner to accord sanction to the expenditure likely to be incurred on the journey to Chandigarh by the deputation of the Committee. In January, 1904 the Secretary to Government, Punjab, Local Government department, wrote a letter to the Deputy Commissioner, Amritsar (annexure L)that the payment of the contribution for the maintenance of the provincialised schools was the statutory liability of the Local Bodies. Since the Municipal committee, Amritsar, had failed to pass the necessary resolution undertaking this liability, it was requested that the provisions of Section 234 of the Punjab municipal Act. 1911, might be invoked. A copy of this letter was forwarded to the executive Officer of the Committee On 10th of April 1904 the Deputy commissioner. Amritsar, issued a notice to the Committee under Section 234 (1)of the Punjab Municipal Act (annexure V) requiring it to pay amount of Rs. 53,66,146 on account of the contribution for the maintenance of the provincialised schools for the period 1957-58 to 1963-64, failing which steps would be taken to realise the said amount under the provisions of Sub-section (2) of Section 234 of the Municipal Act. On 21st of April 1964 the Committee considered the notice dated 10th of April 1964 (annexure V) issued by the Deputy Commissioner. Amritsar and the members requested the President of the Committee to re open their resolution dated 3-1-1962 (annexure R. 1 ). This resolution was reopened by the President and the members generally expressed the view that the notice given by the Deputy Commissioner Amritsar, under Section 234 of the Punjab Municipal act, was not legal and valid. After lengthy discussion, it was decided that the president should nominate a Sub committee of three members who should proceed to Chandigarh along with the Legal Adviser, the Secretary and one other person and engage an eminent and senior Advocate of the Punjab High Court for filing a writ petition and obtaining a stay order etc. , from the High Court. The present writ petition was then filed in May 1964 challenging the vires of the Punjab local Authorities (Aided Schools) Act. 1959 and for suitable directions for the restoration of the properties in possession of the schools taken over by the Punjab government and prohibiting the Government from recovering the amount of contribution from the Committee. It may be mentioned that during the course of arguments it was also contended by the learned Counsel for the petitioner that the notification, annexure P, was bad in law and liable to be quashed.