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Bombay High Court
DHARMADHIKARI,JAMDAR
Chandrakant Chintaman Bhise - Appellant
Versus
State of Maharashtra - Respondent
Decided On : 05/03/1985
BOMBAY PRIMARY EDUCATION ACT - SCOPE OF POWER TO NOMINATE MEMBERS OF MUNICIPAL SCHOOL BOARD - INTERPRETATION OF SECTION 4(10)(A) - DISTINCTION BETWEEN DISSOLUTION AND SUPERSESSION - MEANING OF SUPERSESSION - APPLICATION OF SECTION 4(10)(A) TO CASES OF CESSATION OF TERM OF OFFICE OF MEMBERS OF SCHOOL BOARD - VALIDITY OF NOTIFICATION ISSUED UNDER SECTION 4(10)(A) - JUDICIAL REVIEW.
Fact of the Case:
Several writ petitions were filed challenging the validity of notifications issued by the State Government under Section 4(10)(a) of the Bombay Primary Education Act, 1947, nominating members of Municipal School Boards. The petitioners contended that the power to nominate under Section 4(10)(a) could only be exercised when the electing authorized municipality was superseded and not when it was dissolved or ceased to exist. The State Government argued that the word 'supersession' in Section 4(10)(a) should be given a wider meaning to include all cases where the term of office of the members of the School Board expires during the supersession of the authorized municipality or after the members of the authorized municipality cease to hold office and no general elections are immediately contemplated.
Finding of the Court:
The court held that the word 'supersession' in Section 4(10)(a) of the Bombay Primary Education Act, 1947, should be given a wider meaning to include all cases where the term of office of the members of the School Board expires during the supersession of the authorized municipality or after the members of the authorized municipality cease to hold office and no general elections are immediately contemplated. The court further held that the notifications issued by the State Government under Section 4(10)(a) were valid and that the power to nominate under Section 4(10)(a) could be exercised in all cases where the term of office of the members of the School Board expires during the supersession of the authorized municipality or after the members of the authorized municipality cease to hold office and no general elections are immediately contemplated.
Issues: 1. Whether the power to nominate members of a Municipal School Board under Section 4(10)(a) of the Bombay Primary Education Act, 1947, can only be exercised when the electing authorized municipality is superseded or also when it is dissolved or ceases to exist? 2. Whether the word 'supersession' in Section 4(10)(a) should be given a wider meaning to include all cases where the term of office of the members of the School Board expires during the supersession of the authorized municipality or after the members of the authorized municipality cease to hold office and no general elections are immediately contemplated?
Ratio Decidendi: 1. The court held that the word 'supersession' in Section 4(10)(a) of the Bombay Primary Education Act, 1947, should be given a wider meaning to include all cases where the term of office of the members of the School Board expires during the supersession of the authorized municipality or after the members of the authorized municipality cease to hold office and no general elections are immediately contemplated. 2. The court further held that the power to nominate under Section 4(10)(a) could be exercised in all cases where the term of office of the members of the School Board expires during the supersession of the authorized municipality or after the members of the authorized municipality cease to hold office and no general elections are immediately contemplated.
Final Decision: The court dismissed the writ petitions and upheld the validity of the notifications issued by the State Government under Section 4(10)(a) of the Bombay Primary Education Act, 1947.
JAMDAR, J.:- All these writ petitions raise an important question about ambit and scope of the power conferred on the State Government by cl.(a) of sub-sec. (10) of S.4 of the Bombay Primary Education Act, 1947, to nominate members of a Municipal School Board if the term of the office of the members of such a board expires during the supersession of electing authorised municipality. It is the purported or proposed action of the State Government in exercise of this power that is questioned in these petitions.
2. Writ Petition No. 1084 of 1983 is filed by the petitioners, who are respectively Chairman and Member of the Bhiwandi Municipal School Board which was constituted in July 1975 under S. 3 of the Bombay Primary Education Act. Bhiwandi Municipal Council which is the authorised Municipality within the meaning of S. 2(b) of the Primary Education Act was constituted after elections in Dec. 1974. The term of the Municipal Council was due to expire by the end of Nov. 1979. But, by the Government Resolution dt. 11th Dec. 1979 issued by the State Government under S. 40(1) of the Maharashtra Municipalities Act the term of the council was extended up to 30th Nov. 1980. Consequently by virtue of the provisions contained in S. 4(9) of the Bombay Primary Education Act, the term of the Bhiwandi Municipal School Board stood extended up to Nov. 1980. By the order dt. 6th Sept. 1980 passed by the State Government an Administrator was appointed for Bhiwandi Municipal Council under S. 313 of the Maharashtra Municipalities Act. Thereafter by the order dt. 5th Feb. 1981 issued under S. 48A of the Maharashtra Municipalities Act. Bhiwandi Municipal Council stood dissolved. However, in spite of the appointment of the Administrator and subsequent dissolution of the municipality, the same School Board constituted in Dec. 1974 continued to function till Jan. 1983 when steps were taken by respondent 2 at the instance of the then Deputy Minister Shri Wakar Ahmed Momin to appoint new school board in place of the existing one and to nominate the persons named in the letter of recommendation, Exhibit B dt. Oct. 6, 1982 addressed by the said Shri Wakar Ahmed Momin. The petitioners, therefore, filed this petition for quashing the letter dt. 8th Jan. 1983 addressed by the second respondent. Director of Education to all administrators and school boards in the State calling upon them to furnish information required for constituting the new school boards as contemplated by S. 4(10)(a) of the Bombay Primary Education Act and also for a writ of prohibition prohibiting the respondents from taking any action in pursuance of the said letter and also prohibiting them from superseding the municipal school board of Bhiwandi Nizampur Municipal Council. According to the petitioners letter dt. 18th Jan. 1983 issued by respondent 2 is totally illegal and is contrary to the provisions of Art. 19(1)(a) of the Constitution. It is also their case that sub-sec. (10) of S. 4 of the Bombay Primary Education Act confers a right on the State Government to nominate persons of new school Board only when the authorised municipal council is superseded and that the said provision is not available for nominating members of the school board when the authorised municipal council is dissolved.
3. In his affidavit in reply Shri Bandu Kondiba Vyavahare,. Asst. Secretary, Education and Employment Department, asserted that since the term of office of the members of Bhiwandi-Nizampur Municipal School Board expired during the supersession of the Municipal School Board, the State Government in view of the provisions of S.4(10)(a) of the Bombay Primary Education Act is entitled to nominate the members of
the School Board until the authorised municipality is re-established. According to him though thereafter the Bhiwandi Municipal Council was dissolved along with other municipal councils in the State of Maharashtra, the term of office of the members of the school board having already expired
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