Sheth Dhanji Devshi Rashtriya Shala A Public Trust v. Election Commission Of India And 6 ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.270 OF 2013 Sheth Dhanji Devshi Rashtriya Shala ..

Petitioner.

v/s.

Election Commission of India & Others ..

Respondents.

Mr. Mr. Dilip G. Bagwe, for the Petitioner.

Ms. Geeta Shashtri, Addl. G. P. for the Respondent-State. Mr. Pradeep Rajgopal and Ms. Drishti Shah, for the Respondent- Election Commission of India.

CORAM: A.S.OKA & M.S.SANKLECHA, JJ.

DATE : 12th APRIL, 2019.

P.C:- This Petition under Article 226 of the Constitution of India, challenges the order dated 20th September, 2012 issued by the Respondent No. 5 being the Electoral Registration Officer. The impugned orders seek to requisition the Petitioner's staff for the preparation/ revision of the Electoral Rolls. This power has been exercised under Section 29 of the Representation of the People Act, 1950 (1950 Act). The Petitioner also seeks a declaration that the Respondent Nos.1 to 5 being the Election Commission of India and its Officers cannot requisition staff of the Schools run by the Petitioner whether aided or unaided under Section 29 of the 1950 Act. Moreover, the Petitioner also seeks a

declaration that the Respondents have no jurisdiction to issue notices under Section 159 of the Representation of People Act, 1951 (1951 Act) to the Petitioner and the Schools run by it.

The Petitioner is a Public Trust registered under the Bombay Public Trust Act. It runs/ conducts schools at Ghatkopar, Mumbai. Some of the schools are aided by the State while some are unaided. We first take up the challenge to the impugned order passed under Section 29 of the 1950 Act. We note that in our order passed today in Shikshan Mandal, Goregaon v/s. Election Commission of India (Writ Petition No. 1841 of 2009) we held that orders issued under Section 29 of the 1950 Act to requisition the staff of the Schools is without jurisdiction. For the reasons indicated therein, the Petitioner and/or its Schools would not be covered within the definition and meaning of the words 'local authority' to which alone Section 29 of the 1950 Act applies. The aforesaid decision was given in the context of aided schools.

However, the reasons given therein would equally apply to unaided school/s run by the Petitioner herein. Thus, the impugned order being Exh. B to the Petition which is admittedly issued in exercise of power under Section 29 of the 1950 Act is quashed and set aside. Therefore, following our decision in Shikshan Mandal (supra) we declare that Section 29 of the 1950 Act cannot be exercised to requisition staff of private aided and unaided schools as they are not a local authority. We next take up the prayer that Section 159 of the 1951 Act cannot be invoked to requisition services of the staff of unaided schools. We had occasion to deal with a similar challenge in Unaided School Forum v/s. State Election Commission and Others [Writ Petition No.

of 2009] decided on 3rd April, 2019. In the above case, Mr. Rajgopal, learned Counsel appearing for the Respondent No.1 - Election Commission of India stated that the provisions of Section 159 of the 1951 Act will have no application to private unaided school. This statement would equally apply in respect of the Petitioner's unaided schools. So far as application of Section 159 of the 1951 Act to the aided school/ college is concerned, we note that today we have passed an order in Shikshan Mandal, Goregaon (supra). In the above case, Mr. Rajgopal, learned Counsel appearing for the Respondent No.1- Election Commission of India had stated that the Respondent would requisition staff of private aided schools (both teaching and non-teaching) for only three days training and only for two days at the time of election i.e.

one day prior to polling day and on the polling day. It was also submitted that so far as training is concerned, it would be the endeavor of the Commission to call the staff of the Petitioners for training on non-working days as far as possible. The above statement made by Mr. Rajgopal on behalf of the Respondent No.1- Election Commission of India would equally apply to the present Petition to the extent it relates to private aided Schools.

Therefore, for the reasons recorded herein above, we pass the following order:- (a) The impugned order being Exh. B to the Petition issued under Section 29 of the 1950 Act is quashed and set aside; (b) It is declared that Section 29 of the 1950 Act does not empower the Respondent - Election Commission of India and its Officers to

requisition staff of the Petitioners Schools (aided and unaided) for preparation and/or revision of electoral rolls as already held by us in Shikshan Mandal (supra);

(c) The statement made by Mr.Rajgopal in Unaided School Forum (supra) on 3rd April, 2019 that Section 159 of the 1951 Act has no application to private unaided schools would equally apply in the case of the Petitioner to the extent of the unaided schools; and (d) Section 159 of the 1951 Act would apply so far as private aided schools as held by us in Shikshan Mandal, Goregaon (Supra) wherein a statement was made on behalf of the Election Commission of India that the staff (teaching and non-teaching) will be requisitioned for a definite and specified period i.e. 3 days training and 2 days at the time of polling.

Accordingly, Petition is allowed in the above terms. (M.S.SANKLECHA,J.) (A.S.OKA,J.)