Rameshwar and ors. Vs. Sheo Shanker 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]. - there can, therefore, be no doubt that on the date of the institution of the suit all the 13 plaintiffs had a good cause of action and had a right to pre-empt the sale in favour of the vendees. 5. it follows that on the date of the institution of the suit all the 13 plaintiffs had a good cause of action and were entitled to seek redress with respect to that cause of action by a suit for pre-emption. in this connation, it is well to remember that section 21 is in the nature of a penal section and as such must be strictly construed. if the amount has already been deposited, it will be open to plain tiff-appellants to treat that deposit as a good deposit provided the remaining plaintiffs whose claim stands dismissed agree to the plaintiff-appellants doing so.iqbal ahmad, c. j.1. this appeal arises out of a pre-emption suit. the sale sought to be pre-empted was effected on 13th may 1935 and was for an ostensible consideration of rs. 3215. out of this amount, a sum of rs. 2800 was paid in cash to the vendor before the sub-registrar and the balance of rs. 415 was left with the vendees for the discharge of a prior mortgage. the finding of the trial court was that the consideration entered in the sale deed was the true consideration and there is no controversy about this point in the present appeal.2. there were 13 plaintiffs in the suit. the property sold was in mohal khumani, and on the date of the institution of the suit all the 13 plaintiffs were cosharers in mohal khumani and the vendees were strangers to that mohal. there can, therefore, be no doubt that on the date of the institution of the suit all the 13 plaintiffs had a good cause of action and had a right to pre-empt the sale in favour of the vendees. it, however, appears that proceedings for partition of the mohal were going on in the revenue court and the collector had on 24th april 1936 confirmed the partition and the partition was to come into effect from 1st july 1936. the suit giving rise to the present appeal was filed on nth may 1936. as a result of the partition 9 out of the 13 plaintiff's ceased to be cosharers in the mohal (mohal earn bhawan) to which the property pre-empted was allotted on partition. 4 out of the 13 plaintiffs, however, remained eosharers in mohal ram bhawan and the vendees were strangers to that mohal.3. the vendees contested the suit inter alia on the ground that as in consequence of the partition plaintiffs 1 to 9 had ceased to be cosharers in mohal ram bhawan and had lost their right of pre-emption, the remaining plaintiffs viz., plaintiffs 10 to 13 also lost their rights of pre-emption as they had joined plaintiffs 1 to 9 in the suit. this contention of the vendees was overruled by the trial court and that court passed a decree in favour of all the plaintiffs conditional on the payment of rs. 2800. the sum of rs. 415 that had not been paid by the vendees was left with the plaintiffs for the discharge of a prior mortgage. the vendees appealed to the lower appellate court and that court agreed with the contention of the vendees noted above and dismissed the suit of all the plaintiffs. being dissatisfied with the decree of the lower appellate court, plaintiffs 10 to 13 have filed the present appeal. they have impleaded not only the vendees but also plaintiffs 1 to 9 as respondents to the appeal. the appeal is contested only by the vendees. in our judgment, the decision of the lower appellate court is wrong and cannot be supported. the phrase 'right of pre-emption' is defined by clause 9 of section 4, agra pre-emption act (act 11 of 1922) as meaningthe right of a person on a transfer of immovable property to be substituted in place of the transferee by reason of such right.4. on 11th may 1936, the date on which the suit was filed, the partition, though confirmed by the collector, had not come into effect and as such on that date all plaintiffs 10 to 13 were cosharers in the mohal in which the property sold was situated. it has been held in amir hasan v. mt. sardar begum ('09) 12 o. c. 229 thata partition does not alter the relationship of the shareholders of the village inter se under section 131, u.p. act, 3 of 1901, until the date from which it takes effect, even though the partition has been confirmed and all the papers completed long before that date.5. it follows that on the date of the institution of the suit all the 13 plaintiffs had a good cause of action and were entitled to seek redress with respect to that cause of action by a suit for pre-emption. in other words, on the date that the suit was filed none of the plaintiffs was a stranger to the mohal and had, therefore, a right of preemption. reliance was, however, placed by the vendees on section 21, agra pre-emption act, the relevant portion of which is as follows:where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right.....6. in our judgment, this section is confined in its operation to facts existing on the date of the institution of the suit and not to facts that may come into existence after that date. in other words, the question whether any of the plaintiffs had or had not a right of pre-emption must be determined by reference to the state of affairs existing on the date of the institution of the suit and not by reference to subsequent events. if all the plaintiffs in a pre-emption suit have a right to exercise the right of pre-emption on the date that the suit is filed the mere fact that some of the plaintiffs lose that right during the pendency of the suit cannot adversely affect the rights of the remaining plaintiffs. in the present case, as already stated, all the 13 plaintiffs had a right to pre-empt on 11th may 1936. the suit, therefore, did not offend against the provisions of section 21, preemption act. in this connation, it is well to remember that section 21 is in the nature of a penal section and as such must be strictly construed. reference was also made on be-half of the vendees to section 19, agra pre-emption act which inter alia provides :no decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree....7. in view of this section, no decree could be passed in favour of plaintiffs 1 to 9 as prior to the date of the decree, they had lost their share in the mohal to which the property pre-empted was allotted and to this extent undoubtedly the decree of the trial court was wrong. but as plaintiffs 10 to 13 had the right of pre-emption both on the date of the suit and on the date of the decree they were entitled to a decree for pre-emption with respect to the entire property sold. the vendees also contested the suit on the allegation that they had become cosharers in the mohal by virtue of a deed of gift. the trial court held that by the gift the vendees had not acquired an indefeasible right in the mohal and this finding of the trial court was not contested in the lower appellate court by the vendees. this point cannot therefore be allowed to be raised now in second appeal. for the reasons given above, we allow this appeal, set aside the decrees of the courts below and decree the claim of the plaintiff-appellants conditional on the payment of a sum of rs. 2,800 within three months from today's date. if the amount has already been deposited, it will be open to plain tiff-appellants to treat that deposit as a good deposit provided the remaining plaintiffs whose claim stands dismissed agree to the plaintiff-appellants doing so. if the amount is not deposited within the time allowed, the suit of the plaintiff-appellants shall stand dismissed, other wise it shall stand decreed in the event of their depositing the pre-emption money. the plaintiff-appellants will be entitled to half of the costs incurred by them in all the courts and the defendants will bear their own costs.