Syed Zahur Hasan and ors. Vs. Mt. Shaker Banoo and ors. - Court Judgment

Excerpt:
- 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]. kanhaiya lal, j.1. the dispute in this appeal relates to a plot of land situated in jhansi which was at one time occupied by a house belonging to muhammad zahur. muhammad zahur was a ryot. the zemindari rights of his father in the village were, it is said, sold some time before 1882. muhammad zahur worked as a karinda of his father-in-law, who hada zemindari share in busgit; his wife and children lived in busgit, while he kept up his connection with jhansi. he died in 1887. the house in question fell into ruins some time afterwards and the question for consideration in this case is whether the defendants, who are the heirs of muhammad zahur, had abandoned the house after the death of muhammad zahur and allowed it to fall into ruins so as to entitle the zemindar, namely the defendant no. 9, to resume the land on which the said house stood and grant the right of occupancy thereof to the present plaintiff-respondent. the plaintiff-respondent owns a house adjacent to the land in dispute and her allegation is that license to build a house on the land so abandoned was granted to her by' the defendant no. 9 in september 1919. she complains that when she wanted to build a house on the said land the defendants-appellants interfered and prevented her from making constructions over the same. it is also said that the said defendants then hurriedly collected some materials and built certain walls and a room in order to keep the plaintiff out of the enjoyment of that site.2. the defendants deny having abandoned the site. the court of first instance found in their favour, but the lower appellate court held otherwise.3. the question at issue is really one of fact depending very largely on the evidence of intention afforded by the conduct of the plaintiffs since 1887.4. the lower appellate court has referred in details to the various facts established by the documentary evidence produced, tending to show that the defendants had abandoned their residences in the house in dispute and settled elsewhere, that from 1889 onwards they described themselves as residents of busgit, and that though three members of their family had been buried at jhansi, one having come there to live with his wife and the other two temporarily on account of plague, none of them is shown to have occupied the house in dispute which was lying in ruins from long before.5. the lower appellate court has also pointed out that if any of the members of the family did come to jhansi for temporary purposes, they came and stopped in other houses with other people and showed no intention of either retaining the site of the house in dispute under their control, to rebuild and maintain the house after it had been allowed to fall into ruins.6. the learned counsel for the defendants-appellants contends that the plaintiff as a licensee had no right to sue; that the inferences drawn by the lower appellate court from the facts found to have been established were not justified, and that in any casa the defendants should be deemed to have continued to be the owners of the site in question and so have a right to build thereon. the right of the plaintiff to stop the defendants-appellants from interfering with her constructions was denied by the defendants-appellants on the ground that the latter had not abandoned the site; but her right as a licensee to file a suit was never questioned in any of the courts below or in the memorandum of appeal filed in this court.7. in fact, if the finding of the lower appellate court ' that the defeodants-appellants had abandoned the site and allowed the house to fall into ruins so as to entitle the zemindar to resume the same is correct, the right of the zemindar to grant a license to the plaintiff to occupy the site and build a house thereon cannot be questioned. the decision in basdeo rai v. dwarka ram (1916) 38 all. 178 has no application because that was a suit between a licensor and a licensee, and the question wag what was the proper remedy in a case where the licensee has been ousted by the wrongful revocation of the license. the finding arrived at by the lower appellate court on the question of abandonment is based not so much on inference as on the conduct of the defendants since 1889 onwards and the intention to be gathered therefrom.8. in hazari lal v. nimar a.i.r. 1923 all. 295 it was held in somewhat similar circumstances in respect of land occupied by a, grove, the trees whereof had been cut, that the land having been abandoned by the original grove holders, and having remained waste for over 12 years and reverted to the zemindars, and the successors of the original holders could not presume possession and plant a new grove thereon without the permission of the zamindars.9. as regards the site, there can be no question that on the sale of the proprietary rights, if any, possessed by the father of muhammad zahur, the entire land appertaining to the property sold passed to the auction-purchaser; and by operation of law of the judgment-debtor became a ryot and the rights of the judgment-debtor in respect of the site occupied by his dwelling house were reduced to the position of the other persons residing in the village.10. the appeal, therefore, fails and is dismissed with costs.