Municipal Corporation of Greater Bombay and anr. Vs. Rashmi D. Jani - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses.j.g. chitre, j.1. mrs. mondale for the petitioners. respondent has been served but she is absent and none present for her. the petitioner ishereby assailing the correctness, propriety, and legality of the judgment and order passed by the judge small causes court, bombay, in municipal petition no. 168/1987 whereby the learned judge allowed the appeal filed by the respondent in context with the provisions of section 394(5) of bombay municipal corporation act 1988 (hereinafter referred to as, b.m.c. act for convenience.)2. the respondent mrs. jani had contended before the learned judge in the said appeal that she had taken over the business which was carried on by m/s c. s. pocha and sons in respect of a godown which was situated at palekar road, near jagannath shankarsheth road, girgaum. however, the petitioner b.m.c. refused to renew the said licence when she had applied for that. she contended that the said business was carried on by m/s c. s. pocha from 1964 till 1973 and therefore, she was entitled for renewal of the said licence. the petitioner by written statement dated 15-7-1987 opposed the said prayer by contending that the respondent mrs. jani was carrying on the said business of warehousing in the said premises prior to 1977. it was contended that the premises in which the said business was carried on was dilapidated and was situated in heavily crowded area, which was a residential zone. it was contended that for warehousing business, vehicles and carts would come and that would cause serious prejudice to the traffic and the persons residing in the said locality.3. respondent mrs. jani examined two witnesses, one, her power of attorney holder and second, shri mahadik, an employee of b.m.c. b.m.c. examined one joshi, its employee. the learned judge after appreciating the evidence on record concluded that respondent mrs. jani had proved that she had taken over the business of m/s c. s. pocha and company which was carrying on the business of the godown in the said premises since 1964 till 1972-73 and therefore, mrs. jani was entitled to get the said licence renewed. he also held that the petitioner did not give sufficient reasons while rejecting her prayer, for renewal of the said licence. the learned judge also concluded that the evidence of shri jani, the power of attorney holder of mrs. jani, had gone unchallenged.4. after carefully examining the evidence on record and the reasons given by the learned judge in his judgment, this court comes to the conclusion that the conclusions which have been drawn by the learned judge are contrary to the evidence on record. the letter by which the refusal was conveyed to mrs. jani was indicating the reasons as to why the said permission was refused. therefore, it cannot be proper, correct and legal to say that the said letter was void of any reasons. the point that the said premises situated in thickly populated locality was also indicated by the petitioner for refusal of the permission.5. it is not correct and legal to say that the evidence of shri jani, the holder of power of attorney of mrs. jani, had gone unchallenged. the said witness was cross-examined by the petitioners advocate and sufficient grounds for justifying the stand taken by the petitioner were brought on record. the learned judge lost sight of those grounds and had erroneously recorded his finding that the said evidence had gone unchallenged.6. though sufficient opportunity was available to said shri jani he did not produce any documentary evidence to show that the business of m/s c. s. pocha and company was taken over by mrs. jani. the presumption would go against him as indicated by section 114 of the indian evidence act. it will have to be concluded that if all those documents were produced, those documents would have gone against respondent mrs. jani.7. it has been brought sufficiently on record that premises where mrs. jani wanted to have business of warehousing was situated in thickly populated area. it is for the bombay municipal corporation to take a decision whether a person should be permitted to carry on the business of trading in warehousing in the said thickly populated locality because permitting a person to carry on such business would be causing serious prejudice to the smooth flow of traffic and that would cause serious prejudice to the safety of traffickers on the roads in the said locality.8. section 394 of the b.m.c. act provides that 'except under and in accordance with the terms and conditions of the licence granted by commissioner, no person would' etc. etc. therefore, it was necessary for mrs. jani to obtain the licence granted by the commissioner prior to starting the said trading or business of warehousing in the said premises. but her contention itself shows that she was carrying on the said trade and business till it was noticed by shri ramchandra joshi who visited the said premises on 31-3-1986 and drew his report in respect of the said visit to the said premises, furthermore it is important to note that shri jani, power of attorney holder of mrs. jani, was present at the time of said inspection. the evidence was brought on record to show that the said godown was filled in with cloth bales and packed boxes and was situated in thickly populated girgaum road and was near bus stop. it is pertinent to note at this juncture that the application for renewal which was submitted by mrs. jani was dated 12-8-1986. therefore, when she started the said business without a licence granted by the commissioner of bombay municipal corporation she was not having a right to get the said licence renewed as a matter of right.9. keeping in view environmental, hygienic hazardous eventuality and possibility of rats spreading epidemic diseases, the corporation should not allow the business of godowns in thickly residential localities within corporation limits. in the present case corporation has done the same. where it is wrong on this point?10. the learned judge committed gross error of ignoring all these important aspects of the matter and therefore, landed in error passing the said judgment and order which has been assailed by this petition. this court while exercising the jurisdiction of superintendence in context with the provisions of article 227 of constitution of india cannot permit such illegal judgment and order to remain in existence. therefore, by granting a writ of certiorari in favour of the petitioners, the said judgment and order stands quashed. petition stands allowed with costs and rule is made absolute.