Decided on August 07,1963



- (1.)THE first question debated in this second appeal by defendants, the Commissioners of Darjeeling Municipality, from an appellate judgment and decree of affirmance is whether or not the levy of education cess by the appellants to meet the expenditure on free compulsory primary education comes on the edge of the Bengal Primary Education Act, 4 of 1919, shortened hereafter into the Act. The judge of the first instance and, on appeal, the district judge hold that it does. Mr. Bakshi, the learned advocate for the appellants, contends that it does not.
(2.)A running analysis of the Act may secure a better understanding of the point at issue. It is an Act to provide for the extension of primary education in municipalities and in certain other areas in Bengal. A short one, it consists of 22 sectionssections 1-17, 17a and 18-21. These sections are spread over six partsparts I to IV, IVA and v. Part I consists of two sections, sections 1 and 2, providing for citation of the Act and the area over which it extends and containing seven definitions of which the definition of primary education bears: 2. . (5) "primary education" means such elementary education as may be prescribed from time to time for primary schools by the Education department of the State Governments ;" part II captioned "voluntary Primary Education" consists of two sections too, sections 3 and 4. Section 3 provides for a detailed statement to be submitted to the State Government by the municipality containing particulars, one of which is the number of children, not being less than six or more than eleven years of age, living within the municipality, and the other of which is the receipts already available, and the income including the probable receipts from any education cess that may in future be levied under section 17, which it may be estimated will be available to meet such expenditure. Section 4 prescribes that the State Government shall take the statement just referred to into consideration, as also the conditions and resources of the municipality, shall determine the financial assistance it may render to give voluntary primary education a start and thereafter may direct the municipality to go ahead providing all that is needed to implement the scheme for children of the age groups noticed above. Part III captioned "compulsory primary Education"the longest part of this short Actconsists of twelve sections, sections 5-16. The gist of what sections 5 and 6 say to the municipality comes to this:
(3.)PROVIDE for voluntary primary education first. Decide then if you will make primary education compulsory for boys not less than six and not more than ten years of age. If you decide that, you will seek permission of the State Government to introduce it. Permission obtained, draft a notification stating that the primary education shall be compulsory for the boys of the age groups 610, get it passed at special general meeting convened for the purpose taking care to see that at least two-thirds of the total number of the commissioners are present in the aforesaid meeting and publish it in the Calcutta Gazette and local newspapers. Post it too at the municipal office and at such other places as you may deem necessary. But specify ever where the date when this scheme receives effect. No such notification, no introduction at compulsory primary education under this part. Sections 713 and 15-18 deal with matters which do not concern this litigation. The matters are constitution of the school committee, duty of guardian to send boys to school, order of the magistrate to compel attendance of boys whose guardians are recalcitrant, penalty for failure to obey the magistrate's order, prohibition of employment of boys when such employment does interfere with their attendance at a school, employers' liability, delegation of some of the functions of the school committee, power of the said committee to make rules and exemption of a class of persons or a particular community from compulsory education. Section 14 for sees that there may be guardians who are too poor to pay the schooling fees. But law has made it compulsory for them to send their wards to the school. So it provides for a remission, total or partial, of the fees in appropriate cases. Thus ends Part iii, the heading of which is "compulsory Primary Education". Part IV captioned "education Cess" consists of a solitary section, section 17, the pith of which, in so far as it is material here, is :

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