Emperor Vs. Muhammad Yusuf - Court Judgment

Excerpt:
act (local) no. ii of 1916, (united provinces municipalities act), sections 209 and 210 - 'erect a structure'--movables planks placed across a public drain in front of a shop. - 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]. pramada charan banerji, j.1. muhammad yusuf, the accused in this case, and janki das, the accused in the connected case no. 106 of 1917, have been convicted under section 210 of act ii of 1916, the united provinces municipalities act, and each of them has been sentenced to a small fine. the two cases have been submitted by the learned sessions judge with the recommendation that the convictions and sentences should be set aside. muhammad yusuf and janki das own shops abutting on a public road within the municipal limits of dehra dan. there is a drain in front of their shops which was apparently built at their expense. the drain is at the edge of the public road. culverts have been built over the drain, but the present dispute does not relate to the culverts. the charge against muhammad yusuf was that he had placed wooden planks in front of his shop, supporting them by the culverts on one side and a tin canister on the other. janki das was prosecuted for putting planks over the space between two culverts, so as to cover the drain. the learned sessions judge finds: 'in both cases the erections, if they can be so denominated, are temporary ones, neither the planks nor muhammad yusuf's canister are fixtures; all are placed in site in the mornings and removed when the shops are closed in the evenings. presumably they can be and are also removed if and when it is desired to clean the drain, if it is necessary to remove them in order to perform this operation'. section 210 of the united provinces municipalities act provides that any person erecting or re-erecting any such projection or structure as is referred to in section 209 without the permission thereby required or in contravention of any permission given thereunder shall be liable on conviction to a fine which may extend to two hundred and fifty rupees. clause (b) of sub-section (1) to section 209, which is the clause applicable to the present case, refers' to the erection or re-erection of any projection or structure so as to overhang, project into, or encroach on, or over a drain in a street.'' there is no question of projection in this case. the question is whether the accused had 'erected' any 'structure' encroaching over a drain in a street. the learned sessions judge is of opinion that a structure referred to in section 209, must mean a structure of a permanent nature. it seems to me that the view taken by the learned judge is right. the use of the words 'erect or re-erect' which precede the word 'structure' indicates a structure of a permanent mature. the word 'structure' is not defined in the act, but the use of the word 'erect' shows, as was observed in the case of katnta nath v. the municipal board of allahabad (1905) i.l.r. 28 all. 196, that what was meant was something of the nature of a permanent structure. it does not seem to me that in enacting section 209 the legislature intended to place any other meaning on the word 'erect' than that held in the case to which i have referred. in this view the fixing of a portable plank cannot be deemed to be the erection of a structure within the meaning of section 209 of the act. the conviction of the accused was therefore in my opinion illegal. i accordingly set it aside and direct that the fine imposed on the accused, if paid, be refunded.