Motilal Manrupji Solanki and ors. Vs. Ganeshmal Ramchandra Solanki - Court Judgment

Excerpt:
civil procedure code, 1908 - section 54 and the limitation act, 1963 : article 136 -decree drawn in 1958 in terms of arbitration award - petitioner made an application in 1988 for sending papers to collector for effecting partition of agricultural lands - trial court rejected application on the ground of limitation;that - application cannot be treated as an application for darkhast - it is a precept to collector for effecting partition and limitation act is not applicable. - 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. - the officer contemplated by that rule is an officer like the clerk of the court or nazir, authorised by the court to receive applications.a.y. sakhare, j.1. present writ petition under article 227 of the constitution of india, is filed challenging the order dated 25th april, 1991 passed by the jt. civil judge sr. divn. thane in spl. darkhast no. 35 of 1988 (exh. 1). by the said order, the civil judge. sr. division, thane has dismissed the petitioner's application for sending papers to the collector for effecting the partition, on the ground of limitation.2. the facts relevant for the disposal of the present writ petition are as under:-in a family dispute, sole arbitrator was appointed. on 16th may, 1958, the sole arbitrator declared an award. on 4th august, 1958 the decree was drawn in terms of the said award. on 18th november, 1958, the said decree was presented for registration and accordingly came to be registered. para (d) of the decree relates to four pieces of agricultural lands situated at mulund. the decree mentions that if the partition is permissible, the lands referred to in the said para should be partitioned between the parties by half-half proportion. from the records it is clear that the said lands are agricultural lands assessed to land revenue and for effecting partition, as per section 54 of the code of civil procedure, 1908, the papers are required to be sent to the revenue authorities. on 19th april, 1988, an application in the form of darkhast was filed by the petitioners herein before the civil judge, s.d. thane, with the prayer that the papers be sent to the collector of bombay suburban district for effecting partition of the agricultural lands mentioned in para (d) of the said application. from the perusal of the said application, it is clear that the said application is wrongly termed as darkhast application. the said application ought to have been termed as simplicitor application for sending the papers to the revenue authorities under section 54 of the code of civil procedure, 1908. the respondents herein objected to the prayer made by the petitioners on the ground of limitation and jurisdiction of the civil court to try the execution petition. as far as objection to the jurisdiction is concerned, the trial judge has negatived the said contention and answered the same in favour of the petitioners herein. however, on the point of limitation, the trial court has come to the conclusion that in view of article 136 of the limitation act, 1963, (hereinafter referred to as 'act' for short), darkhast application is time barred.3. mr. n.b. shah, advocate appeared in support of the petition. none appeared for the respondents. mr. shah advocate for the petitioners invited my attention to the two decisions of this court namely (1) the full bench decision in rambai govind v. anant daji air 1945 bom. 338 : 221 ic 383 and (2) the decision recently delivered by the single judge of this court in suit. ramrathibai wd/o. sivnath pardeshi v. surajpal s/o bhulai chaudhari and ors. : air1995bom445 . as per mr. shah, advocate for the petitioner, the trial judge has committed an error in dismissing the petitioner's application on the ground of limitation.4. i find considerable force in the submission of mr. shah. the full bench of this court in the case cited supra has observed as under:-in 41 bom. l.r. 921 beaumont c.j. held that when a court passed a decree for partition of lands assessed to the payment of revenue to the crown and referred it to the collector to carry out the partition, the court's duties were at an end and that the darkhast asking the court to send the papers to the collector was not an application in execution.the full bench has further observed as under :-if for these various reasons such a decree be regarded as preliminary, it would follow that an application made by a party to a decree under order 20 rule 18(1), asking that the papers should be sent to the collector for effecting a partition as directed in it is of the nature of a mere proceeding in the suit rather than an application to execute the decree, and that there is no period of limitation for making it.the court further considered the question that if the decree is regarded as the final decree, still then such an application asking the court for issuance of the precept to the collector is not an application for execution of the decree and only a request to the court to do ministerial act of sending the papers to the concerned collector, and this court thus held (at pp. 341-342 of air):-if on this line of reasoning the decree be regarded as final, it must be recalled that not every final decree is capable of execution. a merely declaratory decree, though final, is by a very nature, incapable of execution. so, too, is a decree under order20 rule 18(1) civil procedure code. it merely declares what are the shares of the parties in the suit lands assessed to government revenue, and by whom the partition is to be effected, but it does not embody a direct order to the collector or to the judgment-debtor to do anything. from this point of view it is merely declaratory. it is true that section 54 appears in the civil procedure code under the heading 'procedure in execution'. that section may have been placed there only to show that such a decree is incapable of execution by the court, and that if a party wants a partition effected as directed by the decree, it is only the collector who can effect it. for that purpose he must request the court to send the decree to the collector. the sending of the decree to the collector is only a ministerial act and not execution of the decree. mr. desai's argument that the collector is an officer appointed by section 54 to receive applications for the execution of such decrees under order 21 rule 10 civil procedure code is not tenable. the officer contemplated by that rule is an officer like the clerk of the court or nazir, authorised by the court to receive applications. the effecting of partition by the collector carrying out an order already passed by the court is not 'execution of the decree' as contemplated by that expression in col. 1 of article 182 of sch. 1, limitation act. even if the decree be regarded as final, this article will not avail the appellant, and there is no reason to doubt the correctness of the view taken in jacinto v. fernandez' that an application to send the decree to the collector for effecting a partition being only a request to the court to do a ministerial act, is not governed by the said article 182.nor is such an application governed by article 181, whether the decree is taken to be preliminary or final. if the decree be regarded as preliminary, then as pointed out by engineer, j. in jesinglal v. gandadhar 40 bom. l.r. 507 : air 1938 bom. 354 it is only in the case of preliminary decrees in mortgage suits that an application for making it final is expressly required by order 34. he says that provisions in the civil procedure code in respect of partition and partnership suits are different and refers to various provisions which require the court passing the preliminary decree in such suits to take the necessary steps suo motu. but there is no provision which requires an application to be made to the court to send a decree under order 20, rule 18(1), to the collector and therefore, article 181 is not applicable to such an application. if, on the other hand, the decree be regarded as final, it is not executable by the court, as already pointed out, and as the code does not provide for an application to have it sent to the collector, such an application, even if made in the form of a darkhast application, is not governed by article 181 or any other article of the limitation act....5. the single judge of this court in the decision of smt. ramrathibai pardeshi v. surajpal chaudhari cited supra, has held that:precept to collector - issue of, sought for giving effect to decree for partition of shares in agricultural lands assessed to land revenue - dismissal of application on ground of filing after lapse of long time from passing of decree- not warranted-application is not application for execution of decree - limitation does not apply to it.6. in view of the decision of the full bench, and the learned single judge, of this court, in my judgment, the present application of the petitioner dated 19th april, 1988, cannot be treated as an application for execution of decree but it is precept to collector for effecting partition and consequently limitation act is not applicable. in my judgment, the trial judge has committed an error in applying provisions of article 136 of the act and dismissing the application on the ground of limitation. the trial court should have accepted the petitioner's request as made in the application dated 18th april, 1988 and should have sent the papers to the collector for effecting the partition as per the provisions of section 54 of the code of civil procedure, 1908.7. in the result, order dated 25th april, 1991 passed by jt. civil judge, senior division, thane in special darkhast no. 35 of 1988 (order below exh. 1) so far as it relates to point no. 2 (limitation) is set aside. the trial court is directed to send papers to the revenue authorities for effecting partition as per the petitioner's prayer in the application dt. 18th april, 1988.rule is made absolute in the aforesaid terms with no orders as to costs.c.c. expedited.