Shankar Lal and ors. Vs. Dalip Singh - Court Judgment

Excerpt:
act xii of 1881, section 9 - occupancy tenant--succession to occupancy tenant--collateral--sharer in cultivation. - 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]. blair, j.1. this case has been referred to a bench of two judges on account of the importance of the question involved. it is substantially the same question as was raised in the first bench before the learned chief justice and myself in letters patent appeal no. 40 of 1893, dated the 24th july 1894. the judgment does not in terms rule upon the disputed question. the hearing of that case ended in an order of remand directing the court below to find who, according to general hindu law, was the heir of the deceased occupancy-tenant. that remand is only comprehensible upon the supposition that we consider no person was qualified as successor in the occupancy-holding who did not combine with his claim as a sharer in the cultivation the further title as heir; and indeed in the course of the argument the interpretation which we put upon section 9 of the n.w.p. rent act, xii of 1881, was abundantly manifest. the question raised is this: 'is a collateral who has shared in the cultivation of land subject to occupancy-tenure entitled on the decease of the tenant whose cultivation he has shared to inherit the occupancy-right in preference to a nearer collateral, who would be heir to the deceased under the ordinary hindu law, but who has not shared in the cultivation of the land in question?'2. i have no doubt upon the wording of the section that one construction, and one only, can be put upon it. the first provision is that on the death of a person entitled to occupancy-tenure that right shall devolve as if it were land. that is precedent to every other condition. it means that the person to inherit must be one who would inherit if the property were immovable property of a totally different kind. then is added a sentence of disqualification and not of qualification. the section goes on: 'provided that no collateral relative of the deceased who did not then share in the cultivation of his holding shall be entitled to inherit under this clause.' it seems to me upon the plain and ordinary construction of this section that it first of all specifies a class out of whom the successor must be taken, and then, in the case of some of such persons not having shared in the cultivation, it excludes them from the benefit they would otherwise derive as heirs. by a ruling to which 'my brother burkitt has called my 'attention--badri das v. dabi das weekly notes 1888 p. 200, my predecessors straight and mahmood, jj., were both of them quite clear as to the interpretation to be put upon this section. i would, therefore, decree the appeal of the plaintiff, and set aside the decrees of both the lower courts with costs, and give a decree for the plaintiff in the terms of the prayer in his plaint.burkitt, j.3. i concur fully in the order proposed by my learned brother, and in the reasons given for it. where a collateral relative claims to be entitled to succeed to an occupancy-holding on the death of the occupancy-tenant without direct heirs, it is, in my opinion, incumbent upon him to prove two things, viz., first, that he is the heir according to the law to which he is subject, and secondly, that he shared in the cultivation of the occupancy-holding during the life-time of the deceased occupancy-tenant. unless these two requisites be joined in one and the same collateral, such person cannot succeed to an occupancy-holding. the facts here are that the more remote collateral shared in the cultivation, while the nearer collateral (who, it so happens, is the father of the more remote collateral) did not so share, and the contention is that, to use a phrase of hindu law, the more remote collateral therefore excludes the nearer, which is a strange proposition. to this proposition i cannot accede. under the words of section 9 the right shall devolve as if it were land. i hold, therefore, that the person on whom that right devolves is the person indicated as heir by the law to which he is subject, and not a person more remote in the line of succession who may have shared in the cultivation with the deceased occupancy-tenant. as has been very properly remarked by my learned brother, the condition requiring the collateral who claims succession to have shared in the cultivation is a disqualification which disentitles the nearest collateral if he has not fulfilled the condition. but it does not confer any right of succession to the occupancy-tenure on a more remote collateral, even though he may have shared in the cultivation. for these reasons i concur in the order of my learned brother setting aside the judgment of the two lower courts and giving plaintiff a decree as prayed for in his plaint.