Bombay High Court
Shri Vivek Marotrao Dabhade & Another vs The State Of Mah. & Others on 16 August, 2016
Author: Vasanti A Naik
Bench: Vasanti A Naik
WP 94/05 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 94/2005
1 Shri Vivek s/o Marotrao Dabhade,
President,
Lokshahir Annabhau Sathe Shikshan Sanstha,
Mungla, Tq. Malegaon, Distt. Washim.
2. Shri Maroti s/o Zingruji Dabhade,
Occu. Service, Deputy Registrar,
Co-operative Societies, Amravati. PETITIONERS
.....VERSUS.....
1. The State of Maharashtra,
through the Secretary,
Department of Education,
Mantralaya, Mumbai - 400 032.
2. Deputy Director of Education,
Amravati Division, Amravati.
3. Swargiya Annabhau Sathe Shikshan Sanstha,
through President,
Ramchandra Punaji Kamble,
R/o Shirpur (Jain), Tq. Malegaon,
Distt. Washim.
4. The Education Officer (Secondary),
Zilla Parishad, Washim. RESPONDENTS
Shri Rahul Dhande, counsel for the petitioners.
Ms Tajwar Khan, Assistant Government Pleader for the respondent nos.1, 2 and 4.
Shri Abdul Subhan, Advocate holding for Shri F.T. Mirza, counsel for the respondent
no.3.
CORAM :SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 16TH AUGUST, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
By this writ petition, the petitioners challenge the order of the respondent no.2, dated 30.12.2004, rejecting the claim of the petitioners for transfer of the management to the petitioners, and directing that the management be retained with Swargiya Annabhau Sathe Shikshan Sanstha, the respondent no.3 to this petition.
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2. The respondent no.3-Swargiya Annabhau Sathe Shikshan Sanstha was formed in the year 1985 with a view to establish educational institutions for imparting education. It is the claim of the petitioners that since the respondent no.3 was not in a position to manage the affairs of the society in a proper manner, the petitioners were entrusted with the management. According to the petitioners, on 29.06.1993, the respondent no.3-Society passed a resolution for transferring the management of the society in favour of Lokshahir Annabhau Sathe Shikshan Sanstha of which the petitioner no.1 is the president. It is the case of the petitioners that in pursuance of the said resolution, the management was actually transferred in favour of Lokshahir Annabhau Sathe Shikshan Sanstha, on 01.10.1993 and permission was granted by the education authorities to the transfer on 13.01.1995. The respondent no.3 being aggrieved by the order dated 13.01.1995, filed Writ Petition No.257 of 1995 for setting aside the said order. The writ petition was disposed of by the order dated 22.02.1996 and the matter was remanded to the Deputy Director of Education after holding that an opportunity of hearing was not afforded to the respondent no.3-sanstha. The Deputy Director of Education passed an order dated 30.05.1996, thereby rejecting the approval for transfer of the management. The petitioners being aggrieved by the order dated 30.05.1996, filed Writ Petition No.1205 of 1996. This Court dismissed Writ Petition No.1205 of 1996 by an order dated 24.06.1996 and upheld the order dated 30.05.1996 ::: Uploaded on - 20/08/2016 ::: Downloaded on - 21/08/2016 00:11:36 ::: WP 94/05 3 Judgment passed by the Deputy Director of Education. The petitioners approached the Hon'ble Supreme Court in a special leave petition and the special leave petition was partly allowed and the matter was remanded to the High Court to reconsider the writ petition on merits, in accordance with law. After the matter was remanded by the Hon'ble Supreme Court in the year 1997, the same was pending in this Court for some time, when the parties filed the minutes of compromise in this Court, in Writ Petition No.1205 of 1996, on 28.10.2004. By the said minutes, the parties agreed that the matter should be decided by the Deputy Director of Education, in accordance with law. In pursuance of the said compromise agreement, this Court disposed of the the writ petition with a direction to the Deputy Director of Education to re-decide the question in relation to the transfer of the management. By the impugned order dated 30.12.2004, the Deputy Director of Education has rejected the proposal for transfer of the management on two grounds. According to the Deputy Director of Education, when the resolution was passed on 29.06.1993, Lokshahir Annabhau Sathe Sanstha, the transferee sanstha was not in existence.
Also, according to the Deputy Director of Education, the order of transfer was passed on a certified copy of the resolution and the original resolution was not produced. The petitioners have challenged the order of the Deputy Director of Education, dated 30.12.2004, in the instant petition.
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3. Shri Dhande, the learned counsel for the petitioner, submitted that the Deputy Director of Education was not justified in holding that Lokshahir Annabhau Sathe Shikshan Sanstha was not in existence on the date of the resolution, dated 29.06.1993 as the said sanstha was not registered under the Societies Registration Act and the Bombay Public Trusts Act, before that date. It is stated that the Secondary School Code was amended on 11.01.1994 and rules 2.1 to 2.9 in the Secondary School Code that were then existing, were deleted. It is stated that Rule 1(17) of the Secondary School Code defines the management to mean an association, body or a person having general and financial control over a school. It is stated that since the word 'person' is not defined under the Secondary School Code, it would be necessary to refer to the definition of the said term under the General Clauses Act. It is stated that under the General Clauses Act, a person would include any company or association or body or individuals, whether incorporated or not. It is stated by referring to Rule 2.1 of the Secondary School Code, as it existed before 11.01.1994, that it was not necessary for a management desirous of seeking permission to start a new school to be registered under the Bombay Public Trusts Act and the Societies Registration Act. It is stated that this requirement is, for the first time, brought into effect by the resolution, dated 11.01.1994, after Rules 2.1 to 2.9 of the Secondary School Code were deleted.
It is stated that as per the form in Appendix 1 under Rule 2.1, as it ::: Uploaded on - 20/08/2016 ::: Downloaded on - 21/08/2016 00:11:36 ::: WP 94/05 5 Judgment existed on 29.06.1993, a management that was not registered under the aforesaid Acts could also apply and inform the education authorities whether it was desirous of getting itself registered under the said Acts or not. It is submitted that the Deputy Director of Education has decided the matter with a closed mind and has not considered the rules that were in force at the time of transfer of the management by the resolution dated 29.06.1993. It is stated that nothing is brought on record on behalf of the respondents to point out that a permission to transfer a management could be granted only if the original resolution is produced and the certified copy of the resolution would not be enough for granting permission. It is stated that both the reasons recorded by the Deputy Director of Education, for rejecting the permission for transfer of the management are illegal and are liable to be set aside.
4. Ms Khan, the learned Assistant Government Pleader appearing on behalf of the Deputy Director of Education, has supported the impugned order. It is, however, fairly stated that the Deputy Director of Education has not applied its mind to the aspect, whether a management was required to be registered under the Bombay Public Trusts Act and the Societies Registration Act on the date of passing of the resolution, dated 29.06.1993. It is stated that the order appears to be proper as a management cannot seek the transfer ::: Uploaded on - 20/08/2016 ::: Downloaded on - 21/08/2016 00:11:36 ::: WP 94/05 6 Judgment on the basis of the certified copy of the resolution dated 29.06.1993.
It is stated that since the original resolution was not produced, the Deputy Director of Education has rightly rejected the prayer of the petitioners.
5. Shri Subhan, the learned counsel for the respondent no.3, has supported the impugned order. It is stated that the original resolution was not produced by the petitioners while seeking permission for transfer. It is stated that no resolution was passed by the respondent no.3 on 29.06.1993 for transferring the management in favour of the sanstha, of which the petitioner no.1 is the president.
6. On hearing the learned counsel for the parties, we find that the Deputy Director of Education has not applied his mind to the relevant rules while deciding the question in regard to the correctness or otherwise of the grant of permission to transfer the management from the respondent no.3 to the sanstha, of which the petitioner no.1 is the president. The resolution was allegedly passed by the respondent no.3 on 29.06.1993 and the Lokshahir Annabhau Sathe Shikshan Sanstha was registered under the Societies Registration Act and the Bombay Public Trusts Act, 1950, on 01.09.1993 and 12.11.1993 respectively. The Deputy Director ::: Uploaded on - 20/08/2016 ::: Downloaded on - 21/08/2016 00:11:36 ::: WP 94/05 7 Judgment of Education had granted permission to the petitioners for transfer of the management. Since the petitioners had relied on the resolution dated 29.06.1993, it was necessary for the Deputy Director of Education to have considered the relevant rules that were then in force. It was necessary for the Deputy Director of Education to have considered the effect of Rule 1(17) and Rule 2.1 of the Rules, that were then in force and the authority could not have relied on the Government Resolution, dated 11.01.1994 by which, the Government had made it necessary for a sanstha to be registered under the Bombay Public Trusts Act and the Societies Registration Act. It appears that the Deputy Director of Education has considered the rules that came into force on 11.01.1994 and has failed to consider the rules that existed at the time of passing of the resolution, on 29.06.1993. It was necessary for the Deputy Director of Education to have considered the relevant rules while deciding the matter. The Deputy Director of Education could not have rejected the application only by observing that the petitioners had not produced the original resolution and had produced a certified copy of the same without referring to any law and without recording any reasons for not accepting the certified copy. In the circumstances of the case, it would be necessary to remand the matter to the Deputy Director of Education for a fresh decision, in accordance with law.
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7. Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order is quashed and set aside. The matter is remanded to the Deputy Director of Education for a fresh decision in the matter of transfer of the management of the respondent no.3 in favour of Lokshahir Annabhau Sathe Shikshan Sanstha of which the petitioner no.1 claims to be the Office bearer. The Deputy Director of Education should decide the matter, within four months, after hearing the petitioners and the respondent no.3.
to costs.
Rule is made absolute in the aforesaid terms with no order as JUDGE JUDGE APTE ::: Uploaded on - 20/08/2016 ::: Downloaded on - 21/08/2016 00:11:36 ::: WP 94/05 9 Judgment CERTIFICATE I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.
Uploaded by: Rohit D. Apte. Uploaded on : 20.08.2016.
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