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ZILA BASIC SHIKSHA ADHIKARI BULANDSHAHR V/S JITENDRA ALIASJ RAMALIAS, decided on Wednesday, August 14, 2002.
[ In the High Court of Allahabad, Appeal No. -------. ] 14/08/2002
Judge(s) : U.S. TRIPATHI
Advocate(s) :
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  "2003 (1) JCLR 438"  







judgment - U.S. TRIPATHI J. This second appeal has been directed against the judgment and decree dated 29-5-2002 pased by the Special Judge SC/st Act/addl. District Judge Court No. 13 Bulandshahr in Civil Appeal No. 58 of 2002 dismissing the appeal of the appellants and confirming the judgment and decree dated 4-4-2002 pased by II Civil Judge (Jr. Division) Bulandshahr in Original Suit No. 34 of 2002 by which the suit of the appellants was decreed. 2. Respondent No. 1 filed Suit No. 34 of 2002 against the appellants for declaration that he had got fundamental right to write get published and sell the books given in the schedule at the foot of the plaint and those books are not forged and for permanent injunction restraining the appellants and their subordinate officers from searching the premises of booksellers where those books are exposed for sale or the printers or publishers and seizing the stock of books. 3. The case of the respondent briefly stated was that he was writer of the books given in the schedule of the plaint and got above books sold by getting it published from the publishers. The above books are helpful to the students for understanding the subject and their success in the examination is increased by reading those books. None of the books given in schedule are notified in the list of course Book as required by U. P. Course Books Act 1978. The writing printing and publishing of the above book are also not done with the approval of the State Government. The appellants extended threats to seize the above books with the help of police declaring them as invalid and forged. 4. The defendants/appellants contested the suit mainly on the ground that the writing printing and publishing of the guide books and helping books is illegal and prior approval of the State Government is required in this regard. Though the books in question were not specified or referred to in the notification under Section 7 of the U. P. Course Books Act 1978 yet those books are parallel to the books approved by the State Government as course books. The respondent therefore had no right to write print and publish the said books. Legal pleas of bar of suit under Order VI Rule 4 Order VII Rule 11 CPC. Sections 80 10 Order II Rule 2 CPC. Sections 34 38 48 Specific Relief Act and Section 18 of Course Books Act were also raised. 5. The trial Court framed necessary issues and on considering the evidence of parties held that the books in the schedule of the plaint were neither forged nor fictitious nor approval of the Government for printing and publishing the above books was required. The above books were not mentioned in the notification under Section 7 of the U. P. Course Books Act and there is no provision prohibiting printing and publishing of the above books. The other legal pleas were decided against the defendants/appellants. With these findings the trial Court decreed the suit. 6. Aggrieved with the above judgment and decree of the trial Court the appellants filed Civil Appeal No. 58 of 2002. The lower appellate Court on reappraisal of the evidence of the parties held that there is nothing on record to prove that printing and publishing of those books was prohibited by any order or notification of the Government. Since those books are also not mentioned in the notification issued under Section 7 of U. P. Course Books Act and those books were not forged and fictions and therefore the restrictions laid down in the U. P. Course Books are not applicable to those books. It further held that the books in question were not the course books and even if those are treated as guide books helping books or question answers no prohibition has been laid by the State Government and therefore the appellant could not put any restriction on printing and publishing the books in question. With these findings the lower appellate Court dismissed the appeal and confirmed the judgment and decree of the trial Court. 7. The above judgment and decree of the lower appellate Court has been challenged in this appeal. 8. I have heard learned Counsel for the appellant and Shri Vishnu Gupta and Sri R. C. Sinha learned Counsel for the caveator/respondent and perused the judgment of Courts below. 9. The contention of the learned Counsel for the appellant was that the suit of the plaintiff/respondent was barred by provisions of U. P. Course Books Act 1978. Having gone through the relevant provisions of the said Act I find that the aboved contention has no force. 10. Section 3 of the above Act which lays certain restrictions in respect of course books reads as under :(1) No dealer shall :(a) withhold from sale any course book held in stock by him or (b) charge for any course book a price which exceeds its notified price. (2) No publisher shall subsequent to the commencement of this Act use any paper other than concessional rate paper for the printing or publishing of text books:(a) prescribed or recommended for use in any class by the Board or by the Department of Education as the case may be;(b) written according to the syllabus in respect of the subject for which the Board has not recommended or approved any book :Provided that nothing contained in this sub-section shall be deemed to require a publisher to use concessional rate paper for the printing or publishing of any book referred to above if concessional rate paper cannot be made available to him for any reason.Section 4 of the Act authorises the Prescribed Authority by order to require the dealer to sell at the notified price the whole of a specified part of such stock to the State Government or to such person or class of persons and in such manner and within such time as it may specify in this behalf. Sub-section (2) of Section 4 authorities the Prescribed Authority to take into custody the stock of course books or sell in the manner specified above. Section 5 of the said Act raise restriction on prescribing of text books by recognised institutions recognised by the Board or maintained or recognised by the Board of Basic Education U. P. where students of Class I to VIII or any of them are taught save with approval of the Director to prescribe any text book for such classes other than those mentioned in the notification issued under Section 7. Section 6 of the Act authorises the Prescribed Authority to collect the information or statistics make entry and search and seize such books etc. Section 7 of the Act authorises to fix fair price of course books. Section 8 of the Act which deals with the penalty reads as under :(i) in the case of contravention of sub-section (1) of that section with imprisonment for a (ii) term which may extend to one year and shall also be liable to fine; and (ii) in the case of any other contravention with imprisonment for a term which may extend to three years and shall also be liable to fine. 11. Section 9 of the Act which deals with attempts and abetment says any person who attempt to contravene or abets a contravention of any provision of this Act shall be deemed to have contravened the Act. 12. The course book as defined in Section 2 (b) of the Act means any book prescribed or recommended by or written according to syllabus of the Department of Education U. P. or Board or any University as defined in Clause (20) of Section 2 of U. P. State Universities Act 1973 and specified or referred to in the notification under Section 7. 13. Thus the prohibition and penalty in contravention of the provisions of the Act are confined to course book as defined above or using any paper other than concessional rate paper for the printing or publishing of the text book prescribed or recommended by Board or Department of Education written according to syllabus. 14. It is admitted case of the parties that the books given in the schedule of plaint are not course books. It is also not the case of either party that the books in question have been published on papers obtained by concessional rate. Therefore none of the provisions of U. P. Course Books Act are attracted to the present case. 15. The lower appellate Court has clarified that even if the books mentioned in the schedule of the plaint are treated as guide books helping books or question answers since the printing and publishing of such books is not prohibited the respondent is not prohibited from writing printing publishing and selling those books. 16. The legal pleas raised by the appellants in their written statement are not applicable and were rightly negatived by Courts below.17. In this way no substantial question of law is involved in this appeal and the point in controversy have finally been settled by concurrent findings of fact recorded by Courts below. 18. The appeal has no force and is dismissed summarily. Appeal dismissed.