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Goaldas Deosthan Vs. State of Maharashtra and anr. - Court Judgment

SooperKanoon Citation

Subject

Civil

Court

Mumbai High Court

Decided On

Case Number

Letters Patent Appeal No. 152 of 2008

Judge

Reported in

2009(4)BomCR680

Acts

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 42(2) and 47(2)

Appellant

Goaldas Deosthan

Respondent

State of Maharashtra and anr.

Appellant Advocate

S.V. Sohoni, Adv.

Respondent Advocate

Sonak, A.G.P.

Excerpt:


- promotion; [v.g. palshikar, actg, c.j., a.p. deshpande & r.m. borde, jj] maharashtra employees of private schools (conditions of service) regulation act, 3/1978, section 5; promotion to post of head master of primary school held, seniority is to be counted from date he acquires requisite educational and training qualifications. for a valid appointment of a primary school teacher, a person must possess educational so also the training/teaching qualification. no person can be legally appointed who does not hold training qualification. hence, service rendered as an untrained teacher will not qualify for being counted to determine seniority. for appointment to the post of head master (by promotion) of a primary school, the seniority of the teacher is to be counted from the date he acquires educational and training qualifications as prescribed under schedule b of the m.e.p.s. rules. the seniority cannot be counted from the date of initial appointment and continuous officiation devoid of requisite qualification as prescribed in schedule b. .....merit in the contention.6. the second contention of the appellant/petitioner was that the application for exemption has been wrongly rejected under section 47(2)(a) of the act on the ground that the petitioner has now spent a major portion of income of land for the purpose of education or medical relief whereas the law requires the applicant to have either spent a major portion for the aforesaid purpose or give an undertaking that he will do so within two years of the exemption. section 47(2)(a) reads as follows:8.47(2) subject to any rules made in this behalf, the state government may, after such inquiry as it deems fit, by an order in the official gazette, exempt from the provisions of this act any of the following lands on such terms and conditions including the extent of area to be exempted as may be specified in the order, namely:land held before the 26th day of september, 1970 by a public trust or a wakf the major portion of the income of such land being appropriated for the purpose of education or medical relief or both or where the major portion of the income is not so appropriated but an undertaking in the prescribed form is given within six months of the commencement.....

Judgment:


1. Heard Mr. S.V. Sohoni, learned Counsel for the appellant and Mr. Sonak, learned A.G.P. for respondents.

2. Admit.

3. Taken up for final hearing by consent.

4. This appeal has been filed by the appellant Trust against the order of the learned Single Judge upholding the rejection of the appellant's exemption under Section 42(2)(a) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The learned Single Judge rejected both the contentions of the petitioner.

5. The petitioner contended before the learned Single Judge that the application for exemption was wrongly rejected because no opportunity of hearing was given to the appellant/petitioner. The learned Single Judge has found that the Secretary has considered the entire material supported by the Trust and there is, therefore, no merit in the contention.

6. The second contention of the appellant/petitioner was that the application for exemption has been wrongly rejected under Section 47(2)(a) of the Act on the ground that the petitioner has now spent a major portion of income of land for the purpose of education or medical relief whereas the law requires the applicant to have either spent a major portion for the aforesaid purpose or give an undertaking that he will do so within two years of the exemption. Section 47(2)(a) reads as follows:

8.47(2) Subject to any rules made in this behalf, the State Government may, after such inquiry as it deems fit, by an order in the Official Gazette, exempt from the provisions of this Act any of the following lands on such terms and conditions including the extent of area to be exempted as may be specified in the order, namely:

Land held before the 26th day of September, 1970 by a public trust or a wakf the major portion of the income of such land being appropriated for the purpose of education or medical relief or both or where the major portion of the income is not so appropriated but an undertaking in the prescribed form is given within six months of the commencement date or within such further period as the State Government may allow in that behalf to the Collector, that the major portion of the income of such land will, within a period of two years from the date of publication of the order granting exemption be appropriated for those purposes;

7. This contention of the petitioner/appellant has been rejected by the learned Single Judge on the ground that the Secretary has rightly observed that even after the undertaking, in no financial year the Trust spent more than Rs. 200/- for medical relief or education.

8. Having regard to the provisions of Section 47(2)(a), it appears that the appellant/petitioner's application for exemption ought to have been considered and in any case not rejected on the ground that after the undertaking, in no financial year, the Trust spent more than Rs. 200/- for medical relief or education. The requirement of Section 47(2)(a) is that there should be an undertaking that the applicant should give an undertaking that the major portion of the income will be appropriated for the purpose of education or medical relief 'within a period of two years from the date of publication of the order granting exemption'. Thus, it is clear that the application for exemption could not have been rejected because the major portion of income has not been spent.

9. We are of the view that the application for exemption cannot be rejected if there is an undertaking to the effect that a major portion of the income will be spent for the aforesaid purposes within two years from the date of exemption. This presupposes that an exemption can be granted on the basis of an undertaking that the amount will be spent within a period of two years. This aspect seems to have been overlooked. In this view of the matter, the judgment in appeal is hereby set aside. The matter is remanded back to the learned Single Judge for fresh consideration in accordance with the law.

10. The Letters Patent Appeal stands disposed of in above terms with no order as to costs.


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