Ved Electrical Stores Vs. Additional Commissioner, Mch - Court Judgment

Excerpt:
civil - stay on proceedings - sections 452 and 636 of hyderabad municipal corporations act, 1955 - notice for demolition issued under section 636 without issuing notice under section 452 - writ petition filed against such notice dismissed - issue of notice under section 452 mandatory - respondents initiated proceedings against appellant without following procedure contemplated in law - held, stay given against proceedings. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. dr. ar. lakshmanan, cj 1. heard sri akella srinivasa rao, learned counsel appearing for the appellant and smt g. jyothi kiran, learned counsel for the respondent.2. we have perused the order passed by the learned single judge in writ petition no. 23050 of 2002. though a common order was passed in three writ petitions, only one appeal has been filed before us. the learned judge dismissed the writ petition on the ground that the suit filed by the appellant-writ petitioner is pending and, therefore, the appellant can approach the civil court by making appropriate application and that it is not permissible for the appellant to approach this court when the suit as regards the same subject matter is pending.3. section 452 of the hyderabad municipal corporations act, 1955 (for short 'the act') provides that a written notice has to be issued by the corporation requiring the person who is erecting or re-erecting such building or executing such work or has erected or re-erected such building or executed such work to show sufficient cause why such building or work shall not be removed, altered or pulled down. in the instant case, no such notice was issued under section 452 of the act. however, the respondent-corporation straightaway issued a notice under section 636 of the act ordering demolition. in our opinion, the procedure followed by the corporation in straightaway issuing the notice under section 636 of the act is impermissible in law. the corporation shall follow the procedure prescribed under the act.4. it was argued by the learned counsel for the corporation that a suit for a similar relief is pending before the competent civil court and, therefore, the appellant can pursue the said remedy and that the writ petition is not the proper remedy available to it.5. we are unable to countenance the said submission. the suit was filed by the appellant herein for declaration that the proceedings issued under section 450 of the act was illegal and for an injunction restraining the corporation from demolishing the construction put up. in the instant case, we are concerned with the proceedings issued under section 636 of the act straightaway ordering demolition. as already stated, the said proceedings under section 636 of the act without issuing a notice under section 452 of the act is unsustainable in law. we, therefore, allow the writ appeal and reserve liberty to the corporation to initiate proceedings against the appellant in accordance with the procedure contemplated under the act. the notice issued under section 636 of the act is set aside. in the meanwhile, there will be stay of demolition.