Beni and ors. Vs. State - Court Judgment

Excerpt:
criminal - interpretation - sections 70(1) and (2) and 3(2) of northern india canal and drainage act, 1873 - 'water course' - water course recognised for the purpose of irrigation - conviction - proof regarding demolition of water course - prosecution failed to prove that there was any such channel and that complainant had acquired a right to the user of the water course - applicants are owner - held, complainant has no grievance. - 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]. - 5. the learned magistrate reached the conclusion that there was an old and well established water-course existing on the southern ridge of plot no. on the basis of the revenue record as well as on his personal knowledge he clearly asserted that in plots nos. in my opinion, however, the prosecution has failed to prove that there was any such channel and that the complainant had acquired a right to the user of the water-course in question. he could, therefore, have no legitimate grievance if the applicants who were the owners of the land dealt with it in any manner they liked.orderh.c.p. tripathi, j.1. this revision is directed against in order of the learned sessions judge, varanasi, upholding the applicants conviction and sentence of rs. 20 each as fine under section 70, clauses (1) and (2) of the northern india canal and drainage act (act viii) of 1873, as recorded by a magistrate, first class on 31-12-1962.2. a complaint was filed by one bashistha tewari on the allegations that on 21-7-1962, at 2 p.m. the applicants demolished the water course which was supplied with canal water from outlet no. 1 of ben canal and included the land in their plot no. 768 and when the complainant remonstrated they were prepared to beat him. when sumnoned, the applicants pleaded not guilty and stated that the allegation made in the complaint were false and that it had been filed on account of enmity. in support of his case the complainant examined himself and two eye-witnesses ramjeet singh and sita ram. ram baksha prasad, canal amin also also testified that there was it water-course near plots nos. 766 and 768 and that in 1370 fasli it had been filled up. on the other hand the applicants examined shyam lal, lekhpal, ram kishan singh sabhapati, ganga ram, ram nandan, kamla prasad and baldeo pande in support of their case that there was no such water-course existing at the spot.5. the learned magistrate reached the conclusion that there was an old and well established water-course existing on the southern ridge of plot no. 768 and the same was demolished by the accused. he, therefore, convicted them as indicated earlier.4. i have heard learned counsel for the applicants and have perused the relevant portions of the record.5. the relevant portion of section 3 reads:'(1) 'canal' includes- (o) all water-courses....... 2. 'water-course' means any channel winch is supplied with water from a canal, but which is not maintained at the cost of the government, and all subsidiary works belonging to any such channel.' 6. in order to bring out an offence under section 70 of the act, therefore, it must be established thai: there was a recognised water-course which had been demolished or damaged by the accused. in this case, however, a number of persons have appeared on the side of the defence who have stated that there was no water-course touching the plot in question. d. w. 1 shyam lal is me lekhpal of the village. on the basis of the revenue record as well as on his personal knowledge he clearly asserted that in plots nos. 766 and 768, etc., there was no watercourse. similar are the statements of sabhapati ham kishan singh and other residents of the village. if the water channel had been existing on these plots since a long time, i.e., about 30 years as has been alleged by the prosecution, there is no reason why it has not been shown as such in the revenue record on the basis of which the lekhpal had asserted that no such watercourse existed on the land. in the case of kanhaiya singh v. rex, ilr 1950 all 780, it was held that in the absence of any order under section 20 or section 21 of the northern india canal and drainage act, whether a particular channel is or is not a water-course is a question of fact and the decision of that question would depend upon the decision of the question whether the watercourse is recognised as such by the people of the locality.7. on the state of evidence on record it is difficult to hold that even if there was any channel on the spot it was recognised as such for the purposes of irrigation by the people of the locality. in order to sustain the conviction of the applicants, therefore, it was essential for the prosecution to have proved that there was a water-course in their plot, that water-course was existing since a long time and had been recognised as such for the purposes of irrigation by the people of the locality. in my opinion, however, the prosecution has failed to prove that there was any such channel and that the complainant had acquired a right to the user of the water-course in question. he could, therefore, have no legitimate grievance if the applicants who were the owners of the land dealt with it in any manner they liked.8. this revision is allowed, and the conviction and sentences of the applicants are setaside. the fines if paid by them shall berefunded to them.

Judgment:
ORDER

H.C.P. Tripathi, J.

1. This revision is directed against in order of the learned Sessions Judge, Varanasi, upholding the applicants conviction and sentence of Rs. 20 each as fine under Section 70, Clauses (1) and (2) of the Northern India Canal and Drainage Act (Act VIII) of 1873, as recorded by a Magistrate, First Class on 31-12-1962.

2. A complaint was filed by one Bashistha Tewari on the allegations that on 21-7-1962, at 2 P.M. the applicants demolished the water course which was supplied with canal water from outlet No. 1 of Ben Canal and included the land in their plot No. 768 and when the complainant remonstrated they were prepared to beat him. When sumnoned, the applicants pleaded not guilty and stated that the allegation made in the complaint were false and that it had been filed on account of enmity. In support of his case the complainant examined himself and two eye-witnesses Ramjeet Singh and Sita Ram. Ram Baksha Prasad, Canal Amin also also testified that there was it water-course near plots Nos. 766 and 768 and that in 1370 fasli it had been filled up. On the other hand the applicants examined Shyam Lal, Lekhpal, Ram Kishan Singh Sabhapati, Ganga Ram, Ram Nandan, Kamla Prasad and Baldeo Pande in support of their case that there was no such water-course existing at the spot.

5. The learned Magistrate reached the conclusion that there was an old and well established water-course existing on the Southern ridge of plot No. 768 and the same was demolished by the accused. He, therefore, convicted them as indicated earlier.

4. I have heard learned counsel for the applicants and have perused the relevant portions of the record.

5. The relevant portion of Section 3 reads:

'(1) 'Canal' includes-

(o) all water-courses....... 2. 'Water-course' means any channel winch is supplied with water from a canal, but which is not maintained at the cost of the Government, and all subsidiary works belonging to any such channel.'

6. In order to bring out an offence under Section 70 of the Act, therefore, it must be established thai: there was a recognised water-course which had been demolished or damaged by the accused. In this case, however, a number of persons have appeared on the side of the defence who have stated that there was no water-course touching the plot in question. D. W. 1 Shyam Lal is me Lekhpal of the village. On the basis of the revenue record as well as on his personal knowledge he clearly asserted that in plots Nos. 766 and 768, etc., there was no watercourse. Similar are the statements of Sabhapati Ham Kishan Singh and other residents of the village. If the water channel had been existing on these plots since a long time, i.e., about 30 years as has been alleged by the prosecution, there is no reason why it has not been shown as such in the revenue record on the basis of which the Lekhpal had asserted that no such watercourse existed on the land. In the case of Kanhaiya Singh v. Rex, ILR 1950 All 780, it was held that in the absence of any order under Section 20 or Section 21 of the Northern India Canal and Drainage Act, whether a particular channel is or is not a water-course is a question of fact and the decision of that question would depend upon the decision of the question whether the watercourse is recognised as such by the people of the locality.

7. On the state of evidence on record it is difficult to hold that even if there was any channel on the spot it was recognised as such for the purposes of irrigation by the people of the locality. In order to sustain the conviction of the applicants, therefore, it was essential for the prosecution to have proved that there was a water-course in their plot, that water-course was existing since a long time and had been recognised as such for the purposes of irrigation by the people of the locality. In my opinion, however, the prosecution has failed to prove that there was any such channel and that the complainant had acquired a right to the user of the water-course in question. He could, therefore, have no legitimate grievance if the applicants who were the owners of the land dealt with it in any manner they liked.

8. This revision is allowed, and the conviction and sentences of the applicants are setaside. The fines if paid by them shall berefunded to them.