Sadashiv Sonaba Ingale Vs. Anandibai Savalaram Chavan, (Through L.Rs.) - Court Judgment

Excerpt:
the bombay rents, hotel and lodging house rates control act, 1947- section 12(3)(a) and section 12(3)(b) - irregular deposit of rent - even if the case is not covered under section 12(3)(a), a decree can be passed under section 12(3)(b). - 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. - in my opinion, therefore, shri bhosale is right in submitting that even if it is assumed that the case is not covered by section 12(3)(a), a decree of eviction passed against the tenant sadashiv can be justified under section 12(3)(b) because he has not deposited the arrears due from him to the landlady immediately after receiving the suit summons, because the suit has been instituted in the year 1977 whereas the first deposit has been made on 9.2,1979. thereafter, again, the tenant has not made deposit of the monthly rent regularly but has made the second deposit only on 10.2.1981. considering the ratio of the judgment of this court in kalandarali's case referred to above, in my opinion, the appellate court was perfectly justified in passing a decree of eviction against the tenant sadashiv. failure of the petitioners to submit the undertaking within the aforesaid period will entitle the respondents to execute the decree forthwith.d.k. deshmukh, j.1. by this petition filed under article 227 of the constitution of india, the petitioners, who are the heirs and legal representatives of the original petitioner sadashiv, challenge the judgment and order dated 12th august 1982 passed by the assistant judge, satara, in civil appeal no. 125/1981. by that judgment, the appellate court under the bombay rent act allowed the appeal filed by the landlady anandibai and set aside the order passed by the civil judge, junior division, satara, dated 26.2.1981 in civil suit no. 205/1977, dismissing the suit for possession of the suit premises filed by the landlady anandibai. the appellate court has decreed the suit by his judgment impugned in the petition.2. the facts giving rise to the present petition are that the original petitioner sadashiv was tenant of 4 khans of house no. 72a/1, malharpeth, satara, of which the original landlady anandibai was the owner. anandibai purchased the suit house by registered sale deed dated 25.5.1971. on 25.4.1977, she issued a notice to the tenant sadashiv demanding arrears of rent for the period from 1.3.1973 to may 1977. admittedly, this notice was received by sadashiv on 26.4.1977. it is also an admitted position that sadashiv did not send any reply to this notice; did not make payment of arrears of rent to the landlady; he also did not make an application to the court for fixation of standard rent within one month of receiving the notice. the landlady filed the civil suit seeking a decree of possession against the tenant sadashiv on two grounds, namely, (i) default committed by the tenant in payment of rent and (ii) bona fide need of the landlady of the suit premises. the trial court recorded a finding on the question of default against the landlady. the trial court, however, held that the landlady had established that she bona fide needs the premises for her own occupation. however, the trial court recorded a finding against the landlady on the question of comparative hardship. in the result, the suit for possession filed by the landlady was dismissed. the landlady carried appeal to the appellate court. the appellate court found on both the questions in favour of the landlady and allowed the appeal. it is this judgment of the appellate court which is impugned in this petition.3. learned counsel appearing for the petitioners urged before me that the tenant sadashiv had sent a money order of rs. 40/- on 25.8.1973 which represented rent due till the month of july 1973 and thereafter a money order of rs. 60/- which represented rent due till the month of september 1973. learned counsel further submitted that both these money orders were refused by the landlady. in the submission of the learned counsel, the fact that the tenant had sent money orders and that the landlady had refused to accept them would show that the tenant was not a defaulter and that he was ready and willing to pay the rent and therefore the finding recorded by the appellate court that the tenant is a defaulter is erroneous.4. learned counsel appearing for the respondents urged that even if it is assumed that two money orders were sent in the year 1973 and the landlady had refused to accept the amounts sent by money orders and that there was no justification for doing so, still for showing that the tenant is not liable for a decree of eviction against him under section 12(2) of the bombay rent act, the tenant, after receiving notice issued by the landlady demanding rent, has either to pay rent or dispute his liability or make an application for fixation of standard rent within a period of one month. in the submission of shri bhosale, admittedly, the tenant has done none of these things and therefore the landlady becomes entitled to a decree of eviction against the tenant under section 12(3)(a) of the act, shri bhosale further urged that even if it is assumed that because the tenant had sent money orders in the year 1973 and therefore the case is not covered by section 12(3)(a) of the act, in order to wriggle out of the provisions of section 12(3)(b), the tenant must show that after he received the suit summons, he deposited the arrears of rent promptly and thereafter went on regularly depositing the amount of rent. in the submission of shri bhosale, the tenant has made deposits before the trial court only twice, i.e. on 9.2.1979 and 10.2.1981. therefore, relying on a judgment of this court in the case of kalandarali v. shaikh gulam : 1997(2)bomcr472 he urged that this court has held that the court under the bombay rent act has no discretion in the matter and that, the tenant has to make deposits on regular basis.5. now, the admitted positions on record are that a notice was sent by the landlady on 25.4.1977 demanding rent for the period from 1.3.1973 to may 1977; that the notice was received by the tenant on 26.4.1977; that after receiving the notice within a period of one month, he neither sent a reply to the notice disputing his liability to make the payment nor did he make the payment; and that he also did not make an application for fixation of standard rent as contemplated by sub-section (3) of section 11 of the act so as to be entitled to a statutory presumption under explanation i appearing in section 12 of the act. in the face of these admitted facts, in my opinion, the tenant would be liable to a decree of eviction under the provisions of section 12(3)(a) of the act. it is to be noted that it is clear from the scheme of section 12 of the act that the tenant not paying rent gives cause of action to the landlord to issue notice contemplated by sub-section (2) of section 12 of the act and once such a notice is issued, the tenant has to take steps contemplated by the provisions of section 12. if the tenant fails to take those steps, he incurs liability of a decree of eviction against him under section 12(3)(a) of the act and the court has no discretion in the matter. in my opinion, therefore, shri bhosale is right in submitting that even if it is assumed that the case is not covered by section 12(3)(a), a decree of eviction passed against the tenant sadashiv can be justified under section 12(3)(b) because he has not deposited the arrears due from him to the landlady immediately after receiving the suit summons, because the suit has been instituted in the year 1977 whereas the first deposit has been made on 9.2,1979. thereafter, again, the tenant has not made deposit of the monthly rent regularly but has made the second deposit only on 10.2.1981. considering the ratio of the judgment of this court in kalandarali's case referred to above, in my opinion, the appellate court was perfectly justified in passing a decree of eviction against the tenant sadashiv.5. in view of the above finding recorded by me, it is not necessary for me to go into the validity of the finding recorded by the appellate court on the question of bona fide need. shri bhosale appearing for the respondents also urged that in view of the finding on the question of default, it is not necessary for this court to go into the validity of the finding recorded by the appellate court on the question of bona fide need. therefore, though the learned counsel appearing for the petitioners insisted on urging that the finding recorded by the appellate court on the question of bona fide need is not proper, in my opinion, once having found that one of the two grounds on which the decree of eviction against the tenant is passed is valid, it is not necessary for me to go into the validity of the finding on the other ground.6. in the result, therefore, the petition fails and is dismissed. rule discharged with no order as to costs.7. at this stage, the learned counsel for the petitioners requests that considering that the tenant was occupying the suit premises for the last 50 years, reasonable time should be given to the petitioners to vacate the suit premises. in the submission of the learned counsel, time upto 31st december 1997 would be a reasonable time. learned counsel for the respondents does not oppose this request but submits that the petitioners should be required to submit an undertaking to this court in the usual form. in view of this, therefore, it is directed that the decree of eviction passed against the petitioners shall not be executed for the period ending with 31st december 1997 subject to the condition that within a period of four weeks from today the petitioners submit an undertaking to this court in the usual form. failure of the petitioners to submit the undertaking within the aforesaid period will entitle the respondents to execute the decree forthwith.