Barkat-un-nissa Vs. Abdul Aziz - Court Judgment

Excerpt:
civil procedure code, section 505 - criminal procedure code, section 145--order of magistrate for maintenance of possession no bar to the appointment of a receiver by a civil court. - 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]. - the ground on which the learned subordinate judge bases his refusal is that in suits like this one before him, there is no rule for the appointment of a receiver, and injunctions only are deemed sufficient. in the present case we consider it absolutely necessary for the preservation and better custody and management of the property that neither of the contending parties should be in possession of it until the dispute between them has been fully determined, and that the property should remain in the custody of a person independent of both parties,-a person moreover whose position will be that of an officer of the court appointed, by and answerable to the court for all acts done by him during the period of his receivership.knox and blair, jj.1. this is an appeal from an order passed by the subordinate judge of moradabad on the 29th july 1899, refusing to appoint a receiver to certain property, the subject of a suit before him. the ground on which the learned subordinate judge bases his refusal is that in suits like this one before him, there is no rule for the appointment of a receiver, and injunctions only are deemed sufficient. he adds that there is no reasonable cause for the appointment of a receiver. now as to the circumstances of the case. the respondent maulvi abdul aziz is a person who in a prior suit had claimed a declaration from thi mcourt that one nurul haq, munsarim of certain waqf property--the property now in suit--had been dismissed from his office of munsarim, that he, maulvi abdul aziz, had been appointed as manager in nurul haq's place, and that being so, the mutawalli, musammat barkat-un-nissa, had no right to remove bim, the said abdul aziz, from the managership. the suit brought by maulvi abdul aziz against musammat barkat-un-nissa and others was fought up to this court with the result that the declaration that maulvi abdul aziz asked for was refused and his suit dismissed. this order was passed on the 10th may 1899. upon this the appellant before us instituted a suit for the ejectment of maulvi abdul aziz, and after institution applied to the subordinate judge for the appointment of a receiver under section 503 of the code of civil procedure. the order refusing the appointment practically gives no reasons for the refusal, and it is not therefore easy to say with authority what it is that weighed upon the subordinate judge's mind. the matter has, in another form, been already before this court, as the appellant asked for an appointment of an ad interim receiver pending the hearing of the present appeal. it was then held that the powers of a civil court trying an action for ejectment were not in any degree controlled by reason of a magistrate making an order maintaining possession on behalf of one of the litigants under section 145 of the code of criminal procedure. the reference here made is to an order passed by a magistrate in 1896, whereby the magistrate, acting under the provisions of section 145 of the code of criminal procedure, decided that mauhri abdul aziz was in possession and issued an order declaring him to be entitled to possession until 'evicted therefrom in due course of law.' if this was the fact which weighed with the subordinate judge we can only repeat in clear terms what was said on the 18th november 1899, namely, that the code of civil procedure and the powers of civil courts under that code are in no way fettered by any order that may be passed by a magistrate under section 145 of the code of criminal procedure. the magistrate's order under section 145 is only intended to control any period up to the time when the civil court takes seisin of the matter and passes such orders as may be necessary for the protection of the property. in the present case we consider it absolutely necessary for the preservation and better custody and management of the property that neither of the contending parties should be in possession of it until the dispute between them has been fully determined, and that the property should remain in the custody of a person independent of both parties,--a person moreover whose position will be that of an officer of the court appointed, by and answerable to the court for all acts done by him during the period of his receivership. we accordingly allow the appeal, set aside the order of the learned subordinate judge, and send this case back to him to be dealt with in the light of our instructions and in accordance with the provisions of section 505 of the code of civil procedure. the appellant will g8t her costs. we think it expedient to add that our order is not to be interpreted as an order setting aside the order of the magistrate. the appointment of a receiver should be made with the least possible delay, and in order that the magistrate may be aware of the purivew of the order of this court we direct that a copy be sent to him for his information.