Shri Shamrao Dinanath Bhatte Vs. Smt. Sulochana Divakar Parkar and ors. - Court Judgment

Excerpt:
the bombay rents, hotel and lodging house rates control act, 1947 section 28 -can a rent court issue a declaration - yes - power to grant possession includes power to make declaration necessary for granting relief, - 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. - 1 was perfectly within the jurisdiction of the court under section 28 of the bombay rent act. 6. thus, i find that the orders impugned in the petition are perfectly legal and valid.d.k. deshmukh, j.1. by this petition, the petitioner challenges the judgment of the appellate bench of the small causes court at bombay in appeal no. 346 of 1980, dated 13.8.1981. the appeal was filed by the petitioner challenging the order of the additional judge, small causes court at bombay, dated 2.4.1980, is r.a.d. suit no. 5472/ 1975.2. the facts giving rise to the present petition are that the present petitioner, shamrao, is monthly tenant in respect of shop no. 13 in a building situate at the corner of gokhale road and n.c. kelkar road, dadar, bearing plot no. 177, t.p.s. no. iv, mahim division, bombay. respondent no. 1, sulochana, filed r.a.d. suit no. 5472/1975 before the small causes court at bombay, claiming that the shop premises were given to her on licence by the present petitioner and therefore she is a protected licensee of the premises, being in the premises on 1.2.1973. she also claimed a mandatory injunction against defendants nos. 2 to 11, who are respondent nos. 2 to 11 in the present petition, directing them to deliver possession of shop no. 2 in the new building to her, namely the plaintiff in the suit. it appears that the entire building was purchased by the respondent no. 2 shri shiv-sena trust. they wanted to erect anew building on the plot and therefore possession of shop no. 13 was handed over to the respondent no. 2 trust pursuant to an agreement entered into on 7.4.1975 between the petitioner and the said trust whereby it was agreed that in the new building to be constructed on the plot, a shop will be allotted to the petitioner. pursuant to that agreement, new building has been constructed on the plot and shop no. 2 is available for allotment. the respondent no. 1 therefore claimed that it is she who is entitled to the possession of that shop as she is sub-tenant of the petitioner. in the civil suit, the respondent no. 1 had filed an application for injunction and by order dated 4.7.1978, there was an injunction issued against the trust and its trustees restraining them from handing over possession of the shop no. 2 in the new building to the present petitioner.3. the petitioner-defendant filed written statement on 13.4.1977. the petitioner contended that the respondent no. 1 plaintiff is not his sub-tenant of shop no. 13 and that the premises were given to her for conducting the business pursuant to the agreement dated 3.9.1962. it appears that after filing the written statement dated 13.4.1977, another written statement was filed by the 1st defendant-petitioner on 25.10.1978 and the lawyer appearing for the 1st defendant-petitioner made an endorsement that the written statement earlier filed should not be considered. the trial court found that the procedure laid down by the civil procedure code was not followed for making the amendment in the written statement and therefore the second written statement filed on behalf of the 1st defendant-petitioner is liable to be excluded from consideration. the parties thereafter led evidence before the trial court. the trial court by its judgment held that by agreement dated 3.9.1962, the present petitioner had not given to the respondent no. 1-plaintiff only the business for conducting but a sub-tenancy was created in her favour. it was further held that she being the sub-tenant of the premises in exclusive possession of the shop, it is she who is entitled to the allotment of shop no. 2 in the new building. the suit filed by the respondent no. 1 was therefore decreed by the trial court. the trial court held that the plaintiff-respondent no. 1 is deemed tenant in respect of shop no. 2 and direction was issued to defendant nos. 2 to 11 to put the plaintiff respondent no. 1 in actual possession of shop no. 2. the judgment of the trial court was challenged by the present petitioner in appeal no. 346/1980. the appellate court confirmed the findings recorded by the trial court and dismissed the appeal. it is against these two orders that the present petition has been filed.4. perusal of the plaint allegations shows that it is the case of the plaintiff respondent no. 1 in the suit that a sub-tenancy was created in her favour by the agreement dated 3.9.1962. perusal of the judgments of the courts below shows that they have found that, according to the petitioner he was conducting a bicycle repair business in the premises at shop no. 13. however, in the agreement, he has not specified the nature of the business that he was carrying on in the suit shop. it is further found by the courts below that the respondent no. 1 was carrying on the business of library and book-selling in the suit premises. the courts have found that in the agreement, it is nowhere stated that the stock-in-trade would be transferred to the respondent no. 1 plaintiff. the courts have also found that pursuant to the agreement dated 3.9.1962, the respondent no. 1 was placed in exclusive possession of the premises and that she was carrying on her library business in the premises to the total exclusion of the petitioner. thus, the finding of both the courts below on this aspect of the matter, namely, that by the agreement dated 3.9.1962, a sub-tenancy was created in favour of the respondent no. 1, is based on the evidence on record. the courts below have recorded this finding of fact after appreciating the evidence led by both the parties in the suit. the courts below have further found that the plaintiff-respondent no. 1 continued to pay rent to the present petition upto april 1975. therefore, it is obvious that even after expiry of the period which was mentioned in the agreement dated 3.9.1962, the respondent no. 1 continued on the premises. the courts have found that as the plaintiff continued in the premises as sub-tenant on 1.2.1973, she becomes a deemed tenant of the premises and her sub-tenancy is protected by law. the trial court, in paragraph 18 of its judgment has observed thus :18. therefore, on the evidence on record, i have no hesitation to conclude that the plaintiff has established her claim that a valid licence in respect of shop no. 13 was subsisting is her favour. it is, therefore, irresistible to conclude that she had become a deemed tenant in respect of shop no. 13. hence 1 record an affirmative finding on issue no. 2.5. the courts below have, after finding that the respondent. no. 1-plaintiff' was the sub-tenant, have held that because the petitioner continues to be the tenant of the premises, the agreement entered into between him and the trust is legal. because the petitioner was the tenant, he was competent to enter into an agreement and because the respondent no. 1 was his sub-tenant, it is also obvious that the juridical possession of the premises would continue with him and it is through him that the trust got possession of the premises. the courts have further held that as per the agreement between the trust and the petitioner, the petitioner would be entitled to shop no. 2. however, he would not be entitled to actual possession of the shop because on the date on which the agreement was entered into in april 1975, it was the respondent no. 1 who was in actual possession of the shop as a deemed tenant and therefore, though the petitioner would be entitled to the tenancy of the premises, in so far as the trust, who is the landlord and owner, is concerned, it is the respondent no. i who is the protected sub-tenant of the petitioner who would be entitled to its actual possession. i do not find any flaw in the reasonings adopted by both the courts below. perusal of the judgment of the appellate court shows that except for assailing the findings of facts recorded by the trial court, no other point was raised in the appeal before the appellate court. perusal of the grounds in the present petition shows that it is urged that the suit filed by the respondent no. 1 was not tenable under the provisions of section 28 of the bombay rent act. perusal of section 28 of the act shows that the small causes court under the bombay rent act has jurisdiction to entertain and try all suits or proceedings between a landlord and a tenant relating to the recovery of possession of any premises. the present suit related to the recovery of the premises in relation which the respondent no. 1 had possessory rights. a power given to the court to grant decree for possession, by necessary implication, must include power to make declaration necessary for granting the relief. therefore, a court under the bombay rent act would definitely have power to issue declaration. in my opinion, therefore, the suit filed by the respondent no. 1 was perfectly within the jurisdiction of the court under section 28 of the bombay rent act.6. thus, i find that the orders impugned in the petition are perfectly legal and valid. they are based on the material on record and i do not find any manifest or apparent error of law in the findings recorded by both the courts below.7. in the result, therefore, the petition fails and is dismissed. rule is discharged with no order as to costs.