Ajit Shripath Oak Vs. D.D. Udeshi, - 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. all these petitions arise from a common judgment passed by the trial court as well as by the lower appellate court and the revisional court and they were heard together and are being disposed of by this common judgment. 492 of 1990 came to be instituted by the respondents against the petitioner on 8-1-1990 which was decreed on 6-11-2000, whereby there is the decree for eviction of the petitioner on the ground of bona fide need of the premises for the respondents as well as on the ground of non-user of the premises by the petitioner. however, the court below ignoring those medical certificates as well as failing to exercise the powers under order 32, rule 15 of the code of civil procedure, discharged the said misc. it is his further contention that no opportunity was granted to the petitioner to lead evidence in support of his contention regarding the unsoundness of his mind and therefore the impugned orders are bad in law. according to the respondents, the courts below have not committed any error in exercise of the jurisdiction nor have failed in complying with their obligations under the statutory provisions while passing the impugned orders and therefore the same do not warrant interference. 7. it was strenuously argued on behalf of the petitioner that there was no opportunity granted to the petitioner to lead evidence in support of his contention regarding mental illness and that the trial court failed in complying with its obligation under order 32, rule 15 of the c. once the petitioner's next friend himself has failed to produce the necessary evidence in that regard, the courts below cannot be blamed of having not given opportunity to the petitioner to lead evidence. , once the records disclose a specific order under section 60 of the indian lunacy act dated 10-11-1983 confirming that the petitioner was no more of unsound mind from the year 1983, and there being no material placed on record to even suspect that the petitioner had been suffering from mental illness subsequent to the said order, the courts below cannot be held to have failed in their obligation under order 32, rule 15 of the c. 11. in duvvuri rami reddi's case (supra), the issue involved was whether the provisions of order 32, rule 15 are applicable to unsound person so also to the person of weak mind and in the facts and circumstances of the case, the court, ignoring the earlier order requiring necessary opportunity to be given to the parties to lead evidence on the aspect of weakness of the mind, itself had examined the plaintiff in the court, and concluded that he did not appear to be an idiot or an infirm person incapable of managing his own affairs and, therefore, the said order was set aside. the high court of orissa held that the court below had failed to exercise the jurisdiction judicially and therefore the order was set aside. 14. for the reasons stated above, therefore, there being no case made out for interference in the impugned order in exercise of the writ jurisdiction under article 227 of the constitution of india, the petitions fail and are dismissed and the rule is discharged with no order as to costs.r.m.s. khandeparkar, j.1. rule. by consent, the rule is made returnable forthwith. 2. all these petitions arise from a common judgment passed by the trial court as well as by the lower appellate court and the revisional court and they were heard together and are being disposed of by this common judgment. 3. a civil suit bearing r.a.e. suit no. 492 of 1990 came to be instituted by the respondents against the petitioner on 8-1-1990 which was decreed on 6-11-2000, whereby there is the decree for eviction of the petitioner on the ground of bona fide need of the premises for the respondents as well as on the ground of non-user of the premises by the petitioner. a public notice came to be issued regarding the said decree on 22-12-2000 which was followed by execution proceedings initiated by the respondents being misc. notice no. 6 of 2001. the said execution proceedings were sought to be contested by the petitioner by filing reply through his next friend on 6-3-2002. rejoinder and sur-rejoinder came to be filed on 20-3-2002 and 3-4-2002 respectively. simultaneously, proceedings were initiated in the form of misc. notice of motion no. 349 of 2002 by the petitioner through the next friend on 24-4-2002 and the said proceedings were for appointment of guardian for the petitioner. same were contested by the respondents by filing reply on 31-5-2002, however, sought to be justified in rejoinder dated 10-6-2002 by the petitioner through his next friend. 4. at the same time, by way of abundant caution the petitioner filed appeal against the decree dated 6-11-2000. the same was filed on 4-7-2002. during the pendency of the proceedings in misc. notice no. 6 of 2001, the respondents also took out misc. notice no. 380 of 2002 seeking possession of the suit premises during the pendency of the proceedings in the misc. notice no. 6 of 2001. by a common order, the trial court made the misc. notice no. 6 of 2001 absolute while dismissing the misc. notice of motion no. 349 of 2002 and discharged the misc. notice no. 380 of 2002. the matters were carried in revision applications, however, in relation to the judgment in misc. notice no. 6 of 2001, it was converted into an appeal during the pendency of the revision. all the proceedings came to be disposed of by the lower appellate court and the revisional court by a common judgment and order dated 8-10-2004. hence the present petitions. 5. the grievance of the petitioner is that inspite of the petitioner being admittedly of unsound mind, the suit was initiated and the decree was obtained by the respondents and therefore the same is a nullity and in order to bring the said fact to the notice of the executing court misc. notice of motion no. 349 of 2002 was taken out to enable the petitioner to be represented by the guardian on the ground that the petitioner had continued to be of unsound mind. the contention of the petitioner is that in support of the case of the petitioner about the unsoundness of his mind, he had produced medical certificates. however, the court below ignoring those medical certificates as well as failing to exercise the powers under order 32, rule 15 of the code of civil procedure, discharged the said misc. notice of motion no. 349 of 2002 and illegally made the misc. notice no. 6 of 2001 absolute. it is his further contention that no opportunity was granted to the petitioner to lead evidence in support of his contention regarding the unsoundness of his mind and therefore the impugned orders are bad in law. reliance is sought to be placed in the decisions in the matter of p.p. ar. rm. sp. ramanathan chettiar v. a.r.r.m. somasundram chettiar, reported in air 1941 mad 505, raj kumar v. rameshchand and ors., reported in : air 1999 sc3511 , duvvuri rami reddi v. duvvudu papi reddi and ors., reported in : air 1963 ap160 and tirtha pradhan and ors. v. balabhadra pradhan and anr., reported in : air1993 ori50 in support of the contention sought to be raised on behalf of the petitioner. the learned advocate for the respondents, on the other hand, submitted that the court below having considered the lunacy proceedings which were sought to be initiated under the indian lunacy act, 1912 were disposed of by discharging the guardian appointed for the petitioner by order dated 10-11-1983 and there being no medical evidence produced by the petitioner regarding his claim regarding unsoundness of mind, no fault can be found with the impugned orders dismissing the objections which were sought to be raised on the ground of alleged unsoundness of the mind of the petitioner. according to the respondents, the courts below have not committed any error in exercise of the jurisdiction nor have failed in complying with their obligations under the statutory provisions while passing the impugned orders and therefore the same do not warrant interference. 6. the fact that the lunacy proceedings under the indian lunacy act were concluded with a specific order of discharge of the guardian on 10-11-1983 is not in dispute. it is also a matter of record that in the suit, the petitioner was duly served and he had even filed the written statement which did not disclose any objection for proceeding against him on the ground of alleged lunacy nor any point in that regard was raised nor any next friend had sought intervention in the suit on behalf of the petitioner. the order dated 10-11-1983 apparently discloses that the petitioner had ceased to suffer from mental disorder and therefore could defend himself in the suit. even the petitioner having approached the court through his next friend in misc. notice of motion no. 349 of 2002 though sought to produce certain certificates, stated to be the medical certificates, not even an attempt was made either to file affidavit of any doctor nor there was any attempt made to lead any oral evidence in support of the claim of the petitioner regarding his unsoundness of mind or to prove the said certificates to have been issued by the doctors after examining the petitioner and that the same disclose true state of affairs. as against this, the specific order dated 10-11-1983 discloses that the proceedings were disposed of in accordance with the provisions of section 60(2) of the indian lunacy act and subsequent thereto no materials were available on record before the trial court even to suspect that the petitioner had anytime thereafter had suffered or suffers from mental illness or that he was suffering from mental illness during the period from 1990 to november, 2000 i.e. during the period when the suit was filed and disposed of by the trial court or any part thereof. 7. it was strenuously argued on behalf of the petitioner that there was no opportunity granted to the petitioner to lead evidence in support of his contention regarding mental illness and that the trial court failed in complying with its obligation under order 32, rule 15 of the c.p.c. however, no attempts were made by the petitioner's next friend to lead any evidence, either in the form of affidavit or oral evidence in support of the claim of the petitioner. once the petitioner's next friend himself has failed to produce the necessary evidence in that regard, the courts below cannot be blamed of having not given opportunity to the petitioner to lead evidence. as regards non-compliance of the obligation under order 32, rule 15 of the c.p.c., once the records disclose a specific order under section 60 of the indian lunacy act dated 10-11-1983 confirming that the petitioner was no more of unsound mind from the year 1983, and there being no material placed on record to even suspect that the petitioner had been suffering from mental illness subsequent to the said order, the courts below cannot be held to have failed in their obligation under order 32, rule 15 of the c.p.c. 8. attention was also sought to be drawn to certain documents stated to be medical prescriptions issued for treatment of the petitioner. the prescription, which is annexed to the writ petition no. 9560 of 2004 as annexure 'k', appears to have been issued by one dr. rajendra barve. bare reading of the said prescription discloses that undoubtedly it has been issued for a patient called 'ajit'. it, however, nowhere discloses that the said patient is the petitioner himself. merely because the first name of the petitioner happens to be 'ajit', that by itself would not disclose or establish that the said prescription refers to the alleged treatment to the petitioner and the petitioner alone and not to any other person by name 'ajit'. it is also to be noted that the prescription which was issued in the month of august, 1983 by dr. a.p. patkar, a copy of which is to be found as annexure 'i' to the said petition, refers to various medicines which are apparently different from those which were prescribed under the prescription stated to have been issued by dr. rajendra barve. undisputedly, no care has been taken to disclose whether the ingredients of the medicines which were stated to have been prescribed under the prescription of 1983, issued by dr. a.p. patkar and the prescription of 1989, issued by dr. rajendra barve were same or that the same were prescribed as treatment for similar type of disease. in other words, there is nothing on record to establish a link between the prescription of 1989 with the petitioner or the illness alleged to have been suffered by the petitioner after 1983. 9. the decision in ramanathan chettiar's case (supra) was bearing in mind the applicability of the provisions of the madras agriculturists' relief act to the said case and the benefits available to the parties in occupation of the premises and in that regard necessity to hold a detail judicial enquiry to ascertain whether the person was of mentally unsound mind. it appears that there was no opportunity granted to the parties to lead evidence in the said case. in fact the observations by the madras high court is that there was no enquiry of the kind contemplated by law in the matter and therefore there was irregular exercise of its jurisdiction by the court below. in the case in hand, in the facts and circumstances disclosed from the records and referred to hereinabove, as already held, it cannot be said that there was any irregularity in exercise of jurisdiction. 10. the decision of the apex court in raj kumar's case (supra) was on a totally different issue. there the point was whether compliance of the provisions of the mental health act, 1987 were attracted or not, in cases where the provisions of order 37, rules 1 and 15 were complied with. that is not the point in issue in the case in hand. 11. in duvvuri rami reddi's case (supra), the issue involved was whether the provisions of order 32, rule 15 are applicable to unsound person so also to the person of weak mind and in the facts and circumstances of the case, the court, ignoring the earlier order requiring necessary opportunity to be given to the parties to lead evidence on the aspect of weakness of the mind, itself had examined the plaintiff in the court, and concluded that he did not appear to be an idiot or an infirm person incapable of managing his own affairs and, therefore, the said order was set aside. 12. the decision in tirtha pradhan's case (supra), rather than assisting the petitioner, justifies the impugned order. in the said case, the opposite party was of 90 years old and was alleged to be physically and mentally infirm. on such allegation, the court allowed the party to be represented by the guardian by passing the order solely on the basis of the medical report given by the sub-divisional medical officer without examining such person and without submitting such doctor to be cross-examined in the matter. there was no examination of any witness nor any enquiry as to whether the person was really mentally infirm in that context. the high court of orissa held that the court below had failed to exercise the jurisdiction judicially and therefore the order was set aside. 13. for the reasons stated above, therefore, i do not find any fault with the impugned orders passed by the courts below, nor they disclose any jurisdictional error, nor any arbitrary exercise of jurisdiction, nor breach of any law. 14. for the reasons stated above, therefore, there being no case made out for interference in the impugned order in exercise of the writ jurisdiction under article 227 of the constitution of india, the petitions fail and are dismissed and the rule is discharged with no order as to costs.15. at this stage, the learned advocate for the petitioner prays for stay of execution of the decree of eviction passed against the petitioner. the prayer for stay is objected to by the learned advocate for the respondents on the ground that already the receiver is in possession of the premises for the last many years. indeed the facts disclose that the receiver has already taken the possession. therefore, i do not find any justification for staying the execution of the eviction order. hence the prayer for stay of the execution is rejected.