Ghasi and ors. Vs. Mt. Bharto and ors. - Court Judgment

Excerpt:
- 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]. dalal, j.1. the plaintiffs' occupancy tenants to the extent of 1/3rd in the occupancy holding sued for possession of specific plots on the ground that the holding had been divided between them and the defendants and they had been in possession of these specific plots from which they had been unlawfully ejected. the learned munsiff was of opinion that such a suit for specific possession was barred under the provision of section 32(2) of the tenancy act and granted to the plaintiffs joint possession with the defendants to the extent of 1/3rd of the entire holding.2. on appeal by the plaintiffs the learned district judge was of opinion that a suit for possession in pursuance of existing facts and previous separate possession of co-tenants was not a suit or other proceeding for the division of a holding or distribution of rent thereof and was not barred by any provision of the tenancy act. the matter is concluded by a decision in letters patent of a bench of this court in raghunath kalwar v. bala din kulwar (1911) 33 all 143. the case was first heard by one learned judge and afterwards by another learned judge as the first judge omitted to sign the judgment. the letters patent appeal was heard by two other judges. so in reality the opinion to that effect was confirmed by four learned judges of this court. in that case a former decree was pleaded as res judicata and the defence was that the decree was inoperative as having been passed contrary to the provisions of section 32(2). the judgment pleaded as a bar was delivered in a case similar to the one here. the learned chief justice observed:there is no objection to joint tenants agreeing among themselves to occupy and cultivate distinct parts of the joint holding, provided, that their so doing in no respect prejudices the rights of the land-holder.3. the other learned judge (banerji, j.) said:the former suit was not one for partition of a holding or the distribution of the rent thereof but was a suit for exclusive possession of certain plots of land which the then plaintiff claimed to be separate property. the court which tried that suit had jurisdiction to entertain it.4. the learned counsel for the defendant-appellant referred to three former rulings of this court : achhey lal v. janki prasad (1906) 29 all. 66, ashiq husain v. asgari begam (1998) 30 all. 90, najib ullah v. gulsher khan (1909) 31 all 348.5. in the full bench case the case reported in achhey lal v. janki prasad (1906) 219 all 66, was distinguished because the parties in that case had only the shadowy right of the mortgagees of an occupancy holding. the case reported in ashiq husain v. asgari begam (1908) 3 all. 90, did not depend upon any previous division but desired the court actually to divide the holding. such a suit would naturally offend against the provisions of section 32(2), i do not think that the ruling in raghunath kalwar v. bala din kalwar (1911) 33 all. 143, is in any way in conflict with former rulings of this court. when once co-tenants are in separate possession of separate plots out of the holding and one of the co-tenants is dispossessed, he is entitled to sue for specific possession of the plots from which he is dispossessed so long as the suit is instituted against the co-tenants and not the landlord. such possession does not in any way interfere with the rights of the landlord.6. i dismiss this appeal with costs which shall include here counsel's fees on the higher scale.