In Re: Nathu Mal - Court Judgment

Excerpt:
statute 21 and 25 vic., cap. civ., section 15 - criminal procedure code, sections 145, 435, 439--order of magistrate in case of a dispute relating to immovable property--high court's powers of revision. - 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]. - in his explanation the magistrate has stated to this effect, and shown that the order which he passed was not made until he had examined a great number of witnesses, and had satisfied himself as to the propriety of the order.john stanley, c.j.1. a rule in this case was issued, calling upon the magistrate to show cause why his order of the 21st of january, 1902, passed under section 145 of the code of criminal procedure, should not be set aside, on the ground that the same was passed without hearing the evidence of any of the witnesses who were produced on behalf of the second party, lala nathu mal, and such other order passed as the court might think fit. the rule was issued by me under a misapprehension as to the facts. i understood from a statement of the learned vakil who made the application that none of the witnesses who were called on behalf of the second party had been examined. it, however, now transpires that no less than ten witnesses were examined on his behalf. it appears that in addition to these ten witnesses summonses had been issued for the attendance of 21 other witnesses, and that none of these last-mentioned witnesses were examined by the magistrate, inasmuch as he believed that the evidence which was being produced by the second party was worthless, and that it was only a waste of public time to examine further witnesses. in his explanation the magistrate has stated to this effect, and shown that the order which he passed was not made until he had examined a great number of witnesses, and had satisfied himself as to the propriety of the order. under these circumstances it is clear that the magistrate did not act without jurisdiction. he considered the case and heard as many as ten witnesses on behalf of the second party and five on behalf of the first party. the present application in revision is made under the provisions of section 15 of the charter act. under the code of 1898 the revisional powers of the court in proceedings under chapter xii were withdrawn, and therefore, as it seems to me, the court is not empowered to exercise revisional jurisdiction in such proceedings unless in cases where the magistrate has acted without jurisdiction. according to the present state of the law, since the passing of the act of 1898, the power of revision to he exercised by the court is limited to matters of jurisdiction, that is, to cases in which it is found that the magistrate taking proceedings under chapter xii has acted without jurisdiction. if an order purporting to be made under section 145 is made without jurisdiction, there is no doubt this court can exercise its powers under section 15 of the charter act; but that is not the present case. here the magistrate acted within his powers, and if anything has been done by him to which objection can be taken, it was at the most an irregularity, and this court is precluded from interfering by the express provisions of the act of 1898. i find that this was so laid down in a case decided by a bench of the high court of calcutta, consisting of mr. justice prinsep and mr. justice welkins. that is the case of doulat koer v. rameswari koeri (1890) i.l.r. 26 calc. 625. it appears to me that the law is there correctly laid down, and that the high court cannot exercise revisional powers in proceedings under chapter xii unless in a case where the magistrate has acted without jurisdiction. for these reasons the rule must be discharged. i accordingly discharge it.