Marwah Steels Pvt. Ltd., a Company Registered Under the Companies Act, 1956 and Mr. Raj Marwah, Director, Marwah Steels Pvt. Ltd. Vs. Union of India (Uoi) and the New India Assurance Co. Ltd., a Company Registered Under the Companies Act, 1956 and a Wholly Owned Government Insurance Company - 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. - 2 that their attention was drawn after filing the claim that their proposal for issuance of insurance policy clearly stated that the policy was to be on the reinstatement value basis. 2 on their part refuted the claim of the petitioners under their letter dated 13-4-2006 informing that the loss has been assessed by the surveyors as per the condition of the policy issued to the petitioners about which they were fully well aware and further that the petitioners had accepted the payment in full and final settlement of their claim and therefore, it was not possible to review their claim for further assessment or payment. in the absence of any such clause relating to the basis on which the policy was issued is clear from the insurance contract between the parties, to assume that the policy was issued on reinstatement value basis would amount to re-writing the insurance contract between the parties by the court which is clearly not permissible. 2. on the contrary, the letter dated 11-4-2006 clearly stated that: in this connection we had drawn your attention after filing the claim that our insurance proposal clearly states that the policy to be issued is to be subject to reinstatement value. obviously, therefore, when the action is wholly without jurisdiction, interference in writ jurisdiction would be well justified. if somebody approaches the high court without availing the alternative remedy provided, the high court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. it was further ruled that there are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies.r.m.s. khandeparkar, j.1. heard. rule. the learned advocates appearing for the respondents waive service. by consent, rule made returnable forthwith. 2. by the present petition, the petitioners while challenging the decision of the respondent no. 2 to treat the policy nos.111100/11/04/00831 and 111100/11/05/00800 as policies based on market value basis, seek direction to the respondent no. 2 to sanction the petitioners claim on reinstatement value basis and to continue to treat the said policies to be issued on reinstatement value basis. 3. the petitioners submitted the proposal for standard fire and special perils policy to the respondent no. 1 on 15-9-2003 pursuant to which the respondent no. 2 issued policy bearing no. 1111/11/03/00852 for a period commencing from 15-9-2003 till 14-9-2004 insuring the petitioners building known as 'marwah centre', marwah estate, k.m. marg, andheri (east), mumbai together with the plant and machineries, equipments, electrical installations, etc., for a total sum of rs.18,00,00,000/-against fire, earthquake, flood and other risks as per the forms attached. on the expiry of the said policy, the same was renewed for another year, namely 15-9-2004 to 14-9-2005 being police bearing no. 111100/11/04/00831 by the respondent no. 2.4. on 26-7-2005 water inundated the petitioners factory because of floods due to unprecedented rains in mumbai causing damage to the petitioners property. the petitioners thereupon informed the loss suffered by them to the respondent no. 2 and submitted their claim in the prescribed form on 1-9-2005. the respondent no. 2 appointed m/s. m.r. jhalani & associates as surveyors to inspect the property and to assess the loss. on receipt of the report of the surveyors, the respondent no. 2 offered a sum of rs.35,00,000/- for the loss or damage by the floods to the petitioners which have occurred on 26-7-2005. the said amount was duly received by the petitioners under the receipt dated 10-10-2005 being the payment of the claim no. 111100/11/0055/00057 under the policy no. 111100/11/04/00831.5. on 24-11-2005 the petitioners addressed a letter to the respondent no. 2 claiming that as against their claim for a total amount of rs.71,93,017.84 the respondent no. 2 had released interim amount of rs.35,00,000/-. they were therefore requested to settle their claim for releasing the balance amount of rs.36,93,017.84 ps. a further letter was addressed by the petitioners to the respondents on 15-12-2005 stating that in their claim dated 24-11-2005, due to oversight, one bill of dataxcess integrated technology limited dated 28-10-2005 for rs.40,539/- was not added in the claim and pursuant to the above addition, the total claim was to be rs.72,33,556.84 ps. the respondent no. 2, on the other hand, responded to the petitioners on 29-3-2006 that the gross loss assessed regarding the claim by the petitioners was rs.71,99,206/-from which the depreciation to the extent of rs.3,43,732/-, salvage amount of rs.59,000/-and excess 5% to the tune of rs.3,39,824/-were deducted and after further deduction of the amount of rs.35,00,000/-, which was already paid, it was informed that the net balance amount payable was rs.29,56,550/-.6. the respondents accepted the said amount of rs.29,56,550/-allegedly in full and final satisfaction and discharge of their claim under the policy no. no. 111100/11/04/00831. it was thereafter that the petitioners under the letter dated 11-4-2006 sought to dispute the disallowance of sum of rs.3,43,732/-on account of depreciation and further informed the respondent no. 2 that their attention was drawn after filing the claim that their proposal for issuance of insurance policy clearly stated that the policy was to be on the reinstatement value basis. however, factually the policy document did not mention that the same was issued on reinstatement value basis. it was, therefore, requested by the petitioners to the respondents that the original proposal be called for and verified.7. the respondent no. 2 on their part refuted the claim of the petitioners under their letter dated 13-4-2006 informing that the loss has been assessed by the surveyors as per the condition of the policy issued to the petitioners about which they were fully well aware and further that the petitioners had accepted the payment in full and final settlement of their claim and therefore, it was not possible to review their claim for further assessment or payment. 8. the petitioners, however, still persisted under their letter 27-4-2006 that their proposal form submitted by them required the policy to be on reinstatement value basis and that therefore the respondents should release the further amount of rs.3,43,732/-. while rejecting the said claim, the respondent no. 2 under their letter dated 16-5-2006 informed the petitioner that they had carefully examined the entire issue and had noted that the policy was issued on market value basis and further that the said policy had run for two years prior to the incident which gave rise to claim the policy amount and yet at no point of time it was claimed by the petitioner that the policy was required to be corrected and issued on reinstatement value basis.9. the petitioners still went on disputing the contention in that regard by the respondent no. 2 and since the amount as claimed by them was not paid, the petitioners filed claim before the ombudsman on 16-6-2006 which was rejected on the ground that the ombudsman is empowered only to look into the grievances and complaints in respect of insurance policies taken out in individual capacity i.e. personal lien insurance and as the claim by the petitioners was not relating to such policy, it could not be entertained by the ombudsman.10. thereafter, on 6-7-2006 the petitioners informed the respondent no. 2 about the collapse of 100 feet long boundary wall due to heavy rains on 4-7-2006 and claimed an estimated loss of rs.5,00,000/-. it appears that thereafter the claim was inflated to rs.7,22,610/-and pursuant to the assessment done, the respondent no. 2 paid a sum of rs.4,38,991/-. the same amount was accepted by the petitioners claiming to be partial settlement of their claim. in that regard, the respondent no. 2 informed the petitioners that the amount was offered in full and final settlement of their claim and there is no question of accepting the amount as partial settlement. it was also informed that the amount of rs.4,38,991/- was in full and final settlement of their claim relating to the loss arising out the collapse of the boundary wall and further it was informed that if the petitioners desired to get the policy on reinstatement value basis, then they could give their option at the time of renewal and it was not possible to settle the claim on reinstatement basis of then existing policy.11. in the above facts and circumstances, the petitioners have filed the present petition seeking writ of mandamus for direction to the respondents to sanction the petitioners claim on reinstatement value basis and further while quashing the decision of the respondent no. 2, to treat the policy nos.111100/11/04/00831 and 111100/11/05/00800 to be the policies based on reinstatement value basis and further to continue to treat the petitioner no. 1s policy as having been issued on reinstatement value basis. 12. from the above referred facts of the case, it is apparent that there is a serious dispute between the parties as to whether the insurance policy issued to the petitioners by the respondent no. 2 was on reinstatement value basis or on market value basis. undisputedly, it appears from the copy of the proposal stated to have been forwarded by the petitioners to the respondents before obtaining the policy for the year 2003-2004 that they had applied for issuance of the policy on reinstatement value basis. at the same time, the copy of the policy which was issued in favour of the petitioners for the year 2003-2004 nowhere discloses to have been issued on reinstatement value basis. besides, the said policy discloses to be subject to warranties and clauses as per the forms attached. however, the copy of the policy placed on record does have any such attached forms regarding the warranties and clauses. in the absence of any such clause relating to the basis on which the policy was issued is clear from the insurance contract between the parties, to assume that the policy was issued on reinstatement value basis would amount to re-writing the insurance contract between the parties by the court which is clearly not permissible. {vide: lic of india and anr. v. s. sindhu : air2006sc2366 ; the managing director, orix auto finance (india) ltd. v. shri jagmander singh and anr. : (2006)2scc598 }. 13. it is further pertinent to note that even the policy for the year 2004-2005 nowhere discloses on the face of it as having been issued on reinstatement value basis. what is further pertinent to note is that the letter dated 11-4-2006 for the first time refers to the claim of the petitioners that the policy which was issued to the petitioners was subject to reinstatement value basis. none of the correspondence prior to 11-4-2006 refers to any such issue having been raised by the petitioners in relation to the concerned policy with the respondent no. 2. on the contrary, the letter dated 11-4-2006 clearly stated that:in this connection we had drawn your attention after filing the claim that our insurance proposal clearly states that the policy to be issued is to be subject to reinstatement value. by this letter, there is a clear admission on the part of the petitioners that even at the time of filing of the claim, after the incident of 26-7-2005, the petitioners had not claimed the policy to have been issued on reinstatement value basis. it was only 'after filing such claim', that it was brought to the notice of the respondent no. 2 that the insurance policy in favour of the petitioners ought to have been issued on reinstatement value basis. it is also an undisputed fact that the petitioners were fully aware that the policy issued to them did not mention that the same was on the reinstatement value basis and yet there was no reaction of whatsoever nature in that regard by the petitioners till the actual claim was made pursuant to the incident of 26-7-2005. this obviously discloses that there are disputed question of facts which will require the adjudication thereof by the competent court before arriving at the finding about the nature of the insurance policy and no writ in the nature asked for can be issued without such finding. on this ground alone, the petition is liable to be dismissed.14. it is sought to be contended that the amount of rs.35,00,000/-was accepted as the petitioners had no option than to succumb to the pressure of the respondent no. 2 in the situation that prevailed pursuant to the loss suffered on account of the incident of 26-7-2005. even assuming that the petitioners were hard pressed to accept the amount offered in the given situation, nothing prevented the petitioners from claiming that the policy ought to have been issued on reinstatement value basis, immediately after it was issued to them in the year 2003-2004. similar is the case in relation to the year 2004-2005. one fails to understand what prevented them from insisting for issuance of policy clarifying the basis on which it was issued and incorporating the same in the policy which was issued for two earlier years and what made them to wait till the actual calamity occured and the claim was required to be preferred based on the policy. this obviously discloses the necessity for adjudication of the disputed question of facts and no such exercise is permissible in writ jurisdiction. {vide: har shankar and ors. etc. etc. v. the deputy excise and taxation commissioner and ors. : [1975]3scr254 , kulchhinder singh and ors. v. hardayal singh brar and ors. : (1976)iillj204sc , state of h.p. and ors. v. gujarat ambuja cement ltd. and anr. 2005) 6 scc 499. 15. in state of u.p. v. mohammad nooh reported in air 1958 sc 86, while dealing with the scope of powers under article 226 of the constitution, it was held that if an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior courts sense of fair play, the superior court may, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity. obviously, therefore, when the action is wholly without jurisdiction, interference in writ jurisdiction would be well justified. however, when the matter involves disputed questions of facts, and in the absence of adjudication thereof, circumstances, it is difficult to arrive at any finding as to whether the action is without jurisdiction or not, there cannot be any justification for interference in writ jurisdiction.16. in state of h.p. and ors. v. gujarat ambuja cement ltd. and anr. reported in (2005) 6 scc 499, it was held that the rule of abstaining from interference in case of availability of alternative efficacious remedy, while dealing with a matter in writ jurisdiction, is essentially a rule of policy, convenience and discretion. despite the existence of an alternative remedy it is within the jurisdiction of discretion of the high court to grant relief under article 226 of the constitution but at the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the high court should not interfere if there is an adequate efficacious alternative remedy. if somebody approaches the high court without availing the alternative remedy provided, the high court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. it was further held that the court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. it was further ruled that there are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies. first is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the high court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. neither of these circumstances exist in the case in hand. added to this, there are disputed questions of fact involved in the matter.17. for the reasons stated above, therefore, the petition is liable to be dismissed, leaving it open to the parties to get their dispute settled before the competent court. the petition, therefore, is hereby dismissed. the rule is discharged with no order as to costs.