- (1.) Subject matter of challenge herein is a notification dated April 15, 1992 issued under S. 66 of the West Bengal Primary Education Act, 1973 (hereinafter called as Act of 1973) and a consequential order passed by the authority on June 12, 1997. The vires of S. 64, 65 and 66 of the said Act of 1973 is also under challenge. This Court initially directed notice to be served on the Advocate General of the State as the vires of the State statute is involved herein. However, the Advocate General did not appear. This Court directed Mr. L.K. Gupta, learned senior Advocate to assist this Court as amicus curiae.
(2.) . Mr. Somendra Chandra Bose, learned senior advocate appearing for the writ petitioner, has submitted as follows :-1. Sections 64,65 and 66 of the said act are ultra vires the Constitution since the same empower the State to acquire property without payment of compensation. 2. According to Mr. Bose, Article 19 (1) (f) and Article 31 (2) were in force in the year 1973 when the said act was enacted. Hence, by virtue of the said two articles the said three sections should be declared ultra vires the Constitution. Mr. Bose in support of his contention has cited the case reorted in AIR 1981, SC 271. 3. The notification was attacked by Mr. Bose principally on the two grounds viz. the said notification can not be issued by virtue of the provisions of the said three sections which according to him are ultra vires the Constitution as the same did not contemplate any payment of compensation in respect of the landed properties which are sought to be taken and consequently asuming the said sections are properly enacted, the case of the schools run by the municipality comes under S. 65 and not under S. 66 wherein the Government is to consult the concerned Municipality before taking over of the said schools and as such the said notification issued under S. 66 is bad in law and is liable to be set aside.
(3.) . Mr. Pabitra Kumar Bose appearing for the State has contended, inter alia, as follows :-1. Although the said Act had been enacted in the year 1973 the same was given effect to in the year 1990, by this time Article 31C has come into force.According to Mr. Bose the said Act is a piece of social welfare legislation where the State thought it fit to provide compulsory primary education in the State to implement part IV of the Constitution. 2. According to Mr. Bose, 1973 Act came into force to serve the directive principles providing free and compulsory primary education. Under the constitution, according to him, such action on the part of the State is immune from Challenge becuase of introduction of Article 31C. Reliance has been placed by Shri Bose in this regard on the decision reported in AIR 1992, SC 938, AIR 1990 SC 123. Mr. Bose has also relied upon the case of Rastriya Mill Mazdoor Sangh reported in AIR 1996, SC, 2797 : (1996 Lab IC 2518) and the case of Maharashtra State Electricity Board, reported in AIR,1990, SC 153. 3. Relying upon the aforesaid decision, Mr. Bose has submitted that the validity of the said three sections are immune from challenge by virtue of the well settled principles of law laid down by the Apex Court.;