Basheshwar Nath Vs. State - Court Judgment

Excerpt:
criminal - transfer case - clause 14, proviso 1 of u.p. high court (amalgamation) order, 1948 - allahabad bench cannot entertain transfer application when case is pending within the jurisdiction of lucknow bench. - 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]. orderb.d. mukerji, j.1. this is an application for the transfer of a case pending in the court of sri a. n. singh, judicial magistrate 1st class, hardoi, to some magistrate at allahabad, competent to try it.2. on behalf of the state a preliminary objection is taken to the hearing of this application by this court on the ground that this court has no jurisdiction under the provisions of the u. p. high courts (amalgamation) order, 1948, inasmuch as the case in respect of which relief is claimed from this court is pending within the jurisdiction of the lucknow bench or is one in respect of which the lucknow bench alone can exercise jurisdiction.3. the relevant clause in the amalgamation order is clause 14. clause 14 is in these words : 'the new high court, and the judges & division courts thereof, shall sit at allahabad or at such other places in the united provinces as the chief justice may, with the approval of the governor of the united provinces, appoint :provided that unless the governor of the united provinces, with the concurrence of the chief justice, otherwise directs, such judges of the new high court, not less than two in number, as the chief justice may, from time to time nominate, shall sit at lucknow in order to exercise in respect of cases arising in such areas in oudh, as the chief justice may direct, the jurisdiction and power for the time being vested in the new high court : provided further that the chief justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at allahabad.' 4. from the above it will be apparent that the first proviso to clause 14 is really the material provision which determines the venue of this application for transfer. there can be no doubt that the case out of which this application has arisen is pending within the area over which the lucknow bench exercises jurisdiction. while dealing with an application for the transfer of a case a court must be deemed to be exercising jurisdiction in respect of a case which has arisen within a certain territorial area or jurisdiction. in my judgment the position of an application for the transfer of a case is not any different from that of an application in revision or an appeal so far as the question of the higher court's territorial jurisdictional powers qua that case is concerned.the high court, when it is called upon to determine, in respect of a case pending in hardoi, which falls within the jurisdiction of the lucknow bench, whether that case should or should not be transferred, it is called upon, without doubt, to exercise its powers in respect of a case which has arisen within such jurisdiction. the fact that a prayer has been made for the transfer of the case to allahabad, which place is within the jurisdiction of the allahabad bench, should make no difference for the reason that the case in respect of which the high court is exercising its powers of transfer is not in respect of a case arising within the jurisdiction of the allahabad bench: it is the jurisdiction of the original matter that determines the jurisdiction of the bench -- lucknow or allahabad -- under the u. p. high courts (amalgamation) order.5. from what i have stated above it appears to me that the preliminary objectionmust prevail. i accordingly dismiss this application as being unentertainable by me.

Judgment:
ORDER

B.D. Mukerji, J.

1. This is an application for the transfer of a case pending in the Court of Sri A. N. Singh, Judicial Magistrate 1st class, Hardoi, to some Magistrate at Allahabad, competent to try it.

2. On behalf of the State a preliminary objection is taken to the hearing of this application by this Court on the ground that this Court has no jurisdiction under the provisions of the U. P. High Courts (Amalgamation) Order, 1948, inasmuch as the case in respect of which relief is claimed from this Court is pending within the jurisdiction of the Lucknow Bench or is one in respect of which the Lucknow Bench alone can exercise jurisdiction.

3. The relevant clause in the Amalgamation Order is Clause 14. Clause 14 is in these words : 'The new High Court, and the Judges & Division Courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint :

Provided that unless the Governor of the United Provinces, with the concurrence of the Chief Justice, otherwise directs, such judges of the new High Court, not less than two in number, as the Chief Justice may, from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court :

Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad.'

4. From the above it will be apparent that the first proviso to Clause 14 is really the material provision which determines the venue of this application for transfer. There can be no doubt that the case out of which this application has arisen is pending within the area over which the Lucknow Bench exercises jurisdiction. While dealing with an application for the transfer of a case a Court must be deemed to be exercising jurisdiction in respect of a case which has arisen within a certain territorial area or jurisdiction. In my judgment the position of an application for the transfer of a case is not any different from that of an application in revision or an appeal so far as the question of the higher Court's territorial jurisdictional powers qua that case is concerned.

The High Court, when it is called upon to determine, in respect of a case pending in Hardoi, which falls within the jurisdiction of the Lucknow Bench, whether that case should or should not be transferred, it is called upon, without doubt, to exercise its powers in respect of a case which has arisen within such jurisdiction. The fact that a prayer has been made for the transfer of the case to Allahabad, which place is within the jurisdiction of the Allahabad Bench, should make no difference for the reason that the case in respect of which the High Court is exercising its powers of transfer is not in respect of a case arising within the jurisdiction of the Allahabad Bench: it is the jurisdiction of the original matter that determines the jurisdiction of the Bench -- Lucknow or Allahabad -- under the U. P. High Courts (Amalgamation) Order.

5. From what I have stated above it appears to me that the preliminary objectionmust prevail. I accordingly dismiss this application as being unentertainable by me.