Vijendra Dhuri Singh Vs. Chetak Co-operative Housing Society Ltd., - 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.orderd.g. deshpande, j.1. heard counsel for the appellant and the respondent no.1. 2. appellant is the original plaintiff and respondents are the original defendants. appellant filed a suit for mandatory injunction against respondent nos. 2 and 3 to direct them to fix electric meter and install telephone connection in the suit premises i.e. garages bearing garage nos. 2 and 3 in the vicinity of and premises of manju maha, chetak co-op. housing society, 35, pali hill, bandra (west), mumbai, and also permanent injunction against respondent no.1 from causing obstruction in discharging legal duties of the respondent no.2 i.e. bses ltd. and respondent no.3 regarding installation of electric connection or telephone at the suit site. (it has to be noted that mr. dwivedi contended that the plaintiff has given up claim regarding installation of telephone line). it was the case of the plaintiff that he was in occupation and possession of the garages nos. 2 and 3 pursuant to agreement dated 27.2.1993 executed between one bhiku and himself on monthly compensation of rs.200/-from 1.3.1993. the plaintiff wanted to have electric connection. he applied to the defendant no. 2. defendant no. 2 were ready to give connection for electricity but the defendant no.1 society opposed and obstructed, even the police help was taken but of no use. therefore, he was constrained to file the suit for the aforesaid reliefs. according to the plaintiff he has a right to get electric supply because he was in occupation of the premises and by virtue of the amendment to the electricity act, 2003, he has become so entitled to under section 43 of the act which enjoins upon licence distributor to supply electricity to the owner or the occupier of any premises within one month of the application requiring such supply. 3. this suit of the plaintiff was strongly opposed by the defendant no.1 society. according to them bhiku had no right in the suit property, therefore it could not transfer any rights to the plaintiff. secondly, the so-called agreement between the plaintiff and bhiku was not binding upon the defendant no.1. even though according to the plaintiff, bhiku was given three garages by builder or society, there was no document in that regard with the plaintiff. the so-called agreement between the plaintiff and bhiku exhibit 'a' was not proved by the plaintiff. then, in that agreement there is mention of garage no.2 only. whereas in the plaint the claim of the plaintiff is in respect of garage nos. 2 and 3. the case of the plaintiff is contradictory to the said agreement, then it was pointed out that bhiku had filed a suit no. 901 of 1995 claiming his rights in the garages. it was dismissed in 1997. then the appellant had filed a suit vide suit no. 5360 of 2000 for injunction. that was also dismissed and in all the three suits the claim was in respect of only one garage. according to the society the plaintiff though in possession is a rank trespasser and the property is situate in pall hill area of bandra and nobody would have given three garages either to bhiku or to the plaintiff. lastly, it was contended that even though as per section 43 bses is under obligation to give supply to occupier of the premises in this case, they could not be permitted to give supply because both the properties i.e. two garages where the plaintiff alleges right are meant for car parking, they could not be converted into residential blocks, allowing electric supply would be contrary to the provisions of the bmc act and the permission granted for construction and it would also result in change of user. 4. in this background, the parties went on trial. the trial court dismissed the suit of the plaintiff and hence this appeal. 5. plaintiff has relied upon 14 documents as referred to by the court in paragraph 10 of the judgment. all these documents merely show that the plaintiff is occupying the suit premises at the most. but the trial court found that bhiku who placed the plaintiff in possession of the property was not at all in possession of the garage so as to enable bhiku to hand over possession to the plaintiff. then plaintiff had filed a suit before the small causes court vide exhibit 28, and, in reply thereto the legal heirs of bhiku categorically denied creation of any tenancy by bhiku in favour of the plaintiff. this was in suit no.615 of 2003. the court also found that nowhere in the earlier litigation the plaintiff claim two garages. but it is for the first time in this suit that he was claiming two garages i.e. garage nos. 2 and 3. in the earlier suit no. 908 of 1995 filed against the society there was no reference to two garages at all. 6. then plaintiff had also filed a suit vide suit no. 5360 of 2000 for the connection of drainage pipeline. it was also in respect of one garage only. his claim was negatived by the city civil court and the suit came to be dismissed. even the ration card relied upon by the plaintiff is of 2000 and not of earlier period. the trial court considered definition of the word 'garage' meaning 'a place for keeping motor cars, a shop for repairing motor cars' and therefore when the place is specifically ear marked for specified user cannot be legally converted to residential purposes, and therefore, there could not be change of user. admittedly, plaintiff did not obtain no objection from the society for getting electric connection. even the society has not accepted bhiku or plaintiff as its members or bhiku to be tenant of the society. the court found that the plaintiff was a simplicitor encroacher and therefore was disentitled to any reliefs. 7. the record of the proceedings and the facts stated above, absence of any evidence regarding execution of the agreement by bhiku because by the time suit came for trial, bhiku was dead, the plaintiff did not attempt to get the agreement proved from any one else. perusal of exhibit 'a' will show that it is drafted by a person thoroughly acquainted with legal language, and, conveyancing of such document could not have been ordinarily executed after understanding the contents by the plaintiff and bhiku who was merely a watchman, they could not have used such a language unless they were highly qualified and expert in preparing documents of such nature. there is no evidence to this agreement nor any mention of the scribe. from the copy supplied with this paper book of appeal, the documents is in english. it is typed. no person who typed or prepared this agreement, is examined by the plaintiff. 8. as already stated by me at the most the plaintiff succeed in proving his occupation of one garage only and that is the garage which was referred to by him in the earlier suits. the addition of garage no.3 in the present suit is nothing but an attempt to grab more and more property of the society. 9. however, counsel for the appellant repeatedly stressed that if under section 43 the occupier was entitled for electric connection, then whether the plaintiff was an encroacher or trespasser was of no consequence. it is difficult to accept this submission. it is not a question between the licensing authority of defendant no.2 the supplier of electricity and the plaintiff but where the suit property is situate in the premises of the society, they are the property of the society. the electric supply is sought for the garages where the plaintiff allegedly resides. the garages cannot be converted into residential premises. allowing claim of the plaintiff would be giving legal sanction to the change of user, which cannot be done by the court. therefore, there is no merit in this appeal the same is dismissed along with civil application, with costs throughout.

Judgment:
ORDER

D.G. Deshpande, J.

1. Heard Counsel for the Appellant and the Respondent No.1.

2. Appellant is the original Plaintiff and Respondents are the original Defendants. Appellant filed a suit for mandatory injunction against Respondent Nos. 2 and 3 to direct them to fix electric meter and install telephone connection in the suit premises i.e. garages bearing garage Nos. 2 and 3 in the vicinity of and premises of Manju Maha, Chetak Co-op. Housing Society, 35, Pali Hill, Bandra (West), Mumbai, and also permanent injunction against respondent No.1 from causing obstruction in discharging legal duties of the respondent No.2 i.e. BSES Ltd. and Respondent No.3 regarding installation of electric connection or telephone at the suit site. (It has to be noted that Mr. Dwivedi contended that the plaintiff has given up claim regarding installation of telephone line). It was the case of the plaintiff that he was in occupation and possession of the garages Nos. 2 and 3 pursuant to Agreement dated 27.2.1993 executed between one Bhiku and himself on monthly compensation of Rs.200/-from 1.3.1993. The plaintiff wanted to have electric connection. He applied to the defendant No. 2. Defendant No. 2 were ready to give connection for electricity but the defendant No.1 society opposed and obstructed, even the police help was taken but of no use. Therefore, he was constrained to file the suit for the aforesaid reliefs. According to the plaintiff he has a right to get electric supply because he was in occupation of the premises and by virtue of the amendment to the Electricity Act, 2003, he has become so entitled to under Section 43 of the Act which enjoins upon licence distributor to supply electricity to the owner or the occupier of any premises within one month of the application requiring such supply.

3. This suit of the plaintiff was strongly opposed by the defendant No.1 society. According to them Bhiku had no right in the suit property, therefore it could not transfer any rights to the plaintiff. Secondly, the so-called agreement between the plaintiff and Bhiku was not binding upon the defendant No.1. Even though according to the plaintiff, Bhiku was given three garages by builder or society, there was no document in that regard with the plaintiff. The so-called agreement between the plaintiff and Bhiku Exhibit 'A' was not proved by the plaintiff. Then, in that Agreement there is mention of garage No.2 only. Whereas in the plaint the claim of the plaintiff is in respect of garage Nos. 2 and 3. The case of the plaintiff is contradictory to the said Agreement, then it was pointed out that Bhiku had filed a Suit No. 901 of 1995 claiming his rights in the garages. It was dismissed in 1997. Then the appellant had filed a suit vide Suit No. 5360 of 2000 for injunction. That was also dismissed and in all the three suits the claim was in respect of only one garage. According to the society the plaintiff though in possession is a rank trespasser and the property is situate in Pall Hill area of Bandra and nobody would have given three garages either to Bhiku or to the plaintiff. Lastly, it was contended that even though as per Section 43 BSES is under obligation to give supply to occupier of the premises in this case, they could not be permitted to give supply because both the properties i.e. two garages where the plaintiff alleges right are meant for car parking, they could not be converted into residential blocks, allowing electric supply would be contrary to the provisions of the BMC Act and the permission granted for construction and it would also result in change of user.

4. In this background, the parties went on trial. The trial court dismissed the suit of the plaintiff and hence this appeal.

5. Plaintiff has relied upon 14 documents as referred to by the court in paragraph 10 of the judgment. All these documents merely show that the plaintiff is occupying the suit premises at the most. But the trial court found that Bhiku who placed the plaintiff in possession of the property was not at all in possession of the garage so as to enable Bhiku to hand over possession to the plaintiff. Then plaintiff had filed a suit before the Small Causes Court vide Exhibit 28, and, in reply thereto the legal heirs of Bhiku categorically denied creation of any tenancy by Bhiku in favour of the plaintiff. This was in Suit No.615 of 2003. The court also found that nowhere in the earlier litigation the plaintiff claim two garages. But it is for the first time in this suit that he was claiming two garages i.e. garage Nos. 2 and 3. In the earlier Suit No. 908 of 1995 filed against the society there was no reference to two garages at all.

6. Then plaintiff had also filed a suit vide Suit No. 5360 of 2000 for the connection of drainage pipeline. It was also in respect of one garage only. His claim was negatived by the City Civil Court and the suit came to be dismissed. Even the ration card relied upon by the plaintiff is of 2000 and not of earlier period. The trial court considered definition of the word 'garage' meaning 'a place for keeping motor cars, a shop for repairing motor cars' and therefore when the place is specifically ear marked for specified user cannot be legally converted to residential purposes, and therefore, there could not be change of user. Admittedly, plaintiff did not obtain no objection from the society for getting electric connection. Even the society has not accepted Bhiku or plaintiff as its members or Bhiku to be tenant of the society.

The court found that the plaintiff was a simplicitor encroacher and therefore was disentitled to any reliefs.

7. The record of the proceedings and the facts stated above, absence of any evidence regarding execution of the agreement by Bhiku because by the time suit came for trial, Bhiku was dead, the plaintiff did not attempt to get the agreement proved from any one else. Perusal of Exhibit 'A' will show that it is drafted by a person thoroughly acquainted with legal language, and, conveyancing of such document could not have been ordinarily executed after understanding the contents by the plaintiff and Bhiku who was merely a watchman, they could not have used such a language unless they were highly qualified and expert in preparing documents of such nature. There is no evidence to this agreement nor any mention of the scribe. From the copy supplied with this paper book of appeal, the documents is in English. It is typed. No person who typed or prepared this agreement, is examined by the plaintiff.

8. As already stated by me at the most the plaintiff succeed in proving his occupation of one garage only and that is the garage which was referred to by him in the earlier suits. The addition of garage No.3 in the present suit is nothing but an attempt to grab more and more property of the society.

9. However, counsel for the appellant repeatedly stressed that if under Section 43 the occupier was entitled for electric connection, then whether the plaintiff was an encroacher or trespasser was of no consequence. It is difficult to accept this submission. It is not a question between the Licensing Authority of defendant No.2 the supplier of electricity and the plaintiff but where the suit property is situate in the premises of the society, they are the property of the society. The electric supply is sought for the garages where the plaintiff allegedly resides. The garages cannot be converted into residential premises. Allowing claim of the plaintiff would be giving legal sanction to the change of user, which cannot be done by the Court. Therefore, there is no merit in this Appeal the same is dismissed along with Civil Application, with costs throughout.